Request Due Diligence Access
Please fill out and submit the form below to request access to due diligence for this property. If you agree with the terms of the NDA, please check the "Approve NDA" box and submit. By submitting this form, you agree to the Terms and Conditions of the Confidentiality Agreement.
If you would like to modify the NDA, please download the Word version, make your changes, and attach the revised version to the form or email it to Chelsea@stream-cp.com.
Once we receive your NDA, we will contact you with login information.
Dear Mr./Ms. __________________:
Reference is hereby made to that certain Confidentiality and Nondisclosure Agreement (the “CA”), dated April 16, 2019, between H.I.G. Middle Market, LLC. (“H.I.G.”) and Project Cardinal (the “Company”) relating to a possible transaction (the “Transaction”). A copy of the CA is attached hereto as Exhibit A. In connection with the possible Transaction, H.I.G. has agreed to provide you with certain Confidential Information (as defined in the CA). By acknowledging below, you hereby (i) acknowledge and agree that you are a Representative (as defined in the CA), (ii) agree to be bound by the terms and conditions of the CA with respect to the confidentiality of the Confidential Information provided to you by H.I.G., (iii) acknowledge that the Confidential Information may only be copied to the extent reasonably necessary for your use in accordance with the CA and (iv) acknowledge and agree that the Company shall be entitled to enforce against you the provisions in the CA with respect to the Confidential Information provided by H.I.G. to you. If you have any questions, please do not hesitate to contact the undersigned.
H.I.G. CAPITAL MANAGEMENT, LLC.
Name: Billy Ma
Acknowledged and agreed on _____ ___, 2020:
April 16, 2019
Subject: Confidentiality Agreement
Ladies and Gentlemen:
H.I.G. Middle Market, LLC, a Delaware limited liability company (the "Potential Acquirer'1 or "HIG") has requested information from Tyco International Finance, S.A., an indirect subsidiary of Johnson Controls International pie (together with its subsidiaries and affiliates, collectively,
"Johnson Controls1’ in connection with the Potential Acquirer's consideration of one or more
possible negotiated transactions with Johnson Controls involving a possible purchase from Johnson Controls of all or a portion of the stock, assets, or business of a North America based
air products business (the "Business11 or any related transactions as may be mutually agreed
between the Potential Acquirer and Johnson Controls (any acquisition or series of acquisitions, a "Potential Transaction"). As a condition to furnishing such information, and in consideration of Johnson Controls' willingness to participate in discussions with the Potential Acquirer, the Potential Acquirer agrees to the terms and conditions of this letter agreement (this "Agreement"), including, without limitation, to treat confidentially all Confidential Information and to take or abstain from taking certain other actions set forth herein.
1. As used in this Agreement, the term "Confidential information” shall include all information, data, documents, agreements, files and other materials received by the Potential Acquirer or its Representatives, both , on and following the date of this Agreement regarding Johnson Controls, regardless of the manner or medium in which it is furnished, including, without limitation, (i) all information and documentation which Johnson Controls is obligated to treat as confidential pursuant to any course of dealing or any agreement to which Johnson Controls is a party, (ii) all information and documentation relating to Johnson Controls' financial, tax, accounting and other information regarding business operations and structure, marketing practices and techniques, business strategies and capabilities, business plans, and relationships with customers, suppliers, principals, employees and others, (iii) any information that is a trade secret within the meaning of applicable trade secret law and (iv) any documentation and materials prepared by the Potential Acquirer or any of its Representatives (as defined below), containing or based in whole or in part on any of the foregoing, including, without limitation, any portion of notes, analyses, compilations, studies, interpretations, memoranda, documents or records containing, referring, relating to, based upon or derived from such information. Confidential Information shall also include the fact that the parties are considering a Potential Transaction, that Confidential Information has been made available to the Potential Acquirer, and the condition, status, terms, pricing or other facts of any discussions, negotiations or investigations by the Potential Acquirer. Confidential Information does not include information that: (a) is or becomes generally available to the public, or other than as a result of a disclosure of the Potential Acquirer or its Representatives in violation of this Agreement or (b) becomes available to the Potential Acquirer on a non-confidential basis from a source that is not known by Potential Acquirer to be bound by or otherwise subject to an obligation of confidentiality or fiduciary duty to Johnson Controls, (c) information already in Potential Acquirer's or its Representatives' possession disclosed or received on a non confidential basis, and (d) information independently developed by Potential Acquirer without the use of or reference to Confidential Information. The term 11R epresentatives" collectively, means, with respect to any party, such party's directors, officers, partners, employees, representatives, agents, advisors, and debt financing sources (including, but not limited to attorneys, consultants, accountants and financial advisors), subcontractors (such parties actually receiving or otherwise accessing or that had access at any to any Confidential Information); provided that, with respect to equity financing sources (including, without limitation, consortium partners or co-bidders), such parties shall not constitute Representatives unless and until Johnson Controls has provided its prior written consent for such parties to act as the Potential Acquirer's equity financing sources, consortium partners, co-bidders, financial advisors or other advisor or agent, as the case may be, and for such parties to receive Confidential Information in connection therewith and such parties shall have agreed to be bound by this Agreement as if a party hereto.
2. The Potential Acquirer shall, and shall cause its Representatives to, keep the Confidential Information strictly confidential and shall use the Confidential Information solely for the purpose of the evaluation, negotiation, or consummation of a Potential Transaction and for no other purpose. The Potential Acquirer shall not, directly or indirectly, at any time whether or not Johnson Controls and the Potential Acquirer enter into a Potential Transaction, disclose any Confidential Information to any party (other than Johnson Controls or its Representatives involved in a Potential Transaction) in any manner, or permit or assist any party (other than Johnson Controls) to use any Confidential Information, except that the Potential Acquirer may disclose Confidential Information to its Representatives to the extent necessary to permit such Representatives to assist the Potential Acquirer in evaluating, negotiating, or consummating a Potential Transaction, provided that the Potential Acquirer shall be liable to Johnson Controls for any action or omission prohibited hereunder by any of its Representatives.
3. Potential Acquirer acknowledges and agrees that all Confidential Information is and remains the property of Johnson Controls. In no event shall Potential Acquirer or any of its Representatives be deemed, by virtue of this Agreement, to have acquired any right or interest of any kind or nature whatsoever, in or to, any Confidential Information. The Potential Acquirer acknowledges and agrees that certain Confidential Information may be information to which attorney-client privilege and/or work product privilege attaches and agrees that access to such Confidential Information is being provided solely for the purpose expressly described in this Agreement and that such access is not intended, and shall not constitute, a waiver of any privilege or any right to assert or claim privilege. To the extent that there is any waiver of privilege, it is intended to be a limited waiver in respect of the receiving party solely for the purpose expressly described in this Agreement and on the terms and conditions in this Agreement. The Potential Acquirer shall, and shall cause its Representatives to, claim or assert (or reasonably cooperate in the claim or assertion of) privilege in respect of such Confidential Information.
4. In the event that the Potential Acquirer or any of its Representatives receives a request or is requested or legally required by law, rule, regulation, order or legal proceeding (including by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information, the Potential Acquirer will give Johnson Controls prompt written notice of such request or requirement (to the extent permitted by law or regulation) so that Johnson Controls may seek an appropriate protective order or other remedy and/or waive compliance with the provisions of this Agreement (at Johnson Controls' sole cost and expense), and the Potential Acquirer will reasonably cooperate with Johnson Controls to obtain such protective order, to the extent legally permissible and at the sole cost and expense of Johnson Controls. In the event that such protective order or other remedy is not obtained or Johnson Controls waives compliance with the relevant provisions of this Agreement, if the Potential Acquirer or its Representatives are, in the opinion of the Potential Acquirer or its Representatives' counsel, as the case may be, legally compelled to disclose Confidential Information, the Potential Acquirer may disclose only that portion of such information as is legally required (in the opinion of the Potential Acquirer or its Representatives' counsel, as the case may be) without liability hereunder; provided, that the Potential Acquirer agrees to exercise its commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such information. Notwithstanding the foregoing, the Potential Acquirer and its Representatives may without notice disclose Confidential Information to any governmental, banking, taxation or other regulatory authority or similar body with jurisdiction over Potential Acquirer or its Representatives (each, a "Regulator") in response to such Regulators' routine requests and audits not targeted at Johnson Controls or any of its businesses.
5. At any time upon request by Johnson Controls or its Representatives, the Potential Acquirer shall promptly return, destroy, or delete (at Potential Acquirer's option), and shall cause its Representatives to promptly destroy and delete, all documents, materials and other items containing Confidential Information received by the Potential Acquirer or any of its Representatives in connection with this Agreement without retaining a copy thereof, and promptly upon the request of Johnson Controls, shall provide a written certification (which can be via email certification in form and substance reasonably satisfactory to Johnson Controls) , signed by an authorized signatory of the Potential Acquirer, as to the completeness of the return, destruction, or deletion of such materials. Upon such request, the Potential Acquirer also shall return, destroy, or delete, and shall cause its Representatives to return, destroy, or delete, all documents, materials and other items created by the Potential Acquirer or such Representatives embodying the Confidential Information, and shall provide a similar certification to Johnson Controls as to the completeness of the return or destruction of such materials. Notwithstanding anything to the contrary in this Agreement, Potential Acquirer and its Representatives may retain Confidential Information: (a) stored in standard archival or computer back-up systems or retained pursuant to such person's normal document retention practices, for regulatory purposes or to the extent required by law, and/or (b) pursuant to their professional accounting obligations or bona fide document retention policy requirements; provided, that such Confidential Information is not generally accessible and continues to be subject to the restrictions herein for the duration of this Agreement. Compliance with this paragraph shall not relieve the Potential Acquirer of its other obligations under this Agreement for a period equal to the term of this Agreement.
6. For the eighteen (18) month period following the date hereof, the Potential Acquirer will not, directly or indirectly, initiate or maintain contact (except for those contacts made in the ordinary course of business not related to the Potential Transaction) with any officer, director, or employee of Johnson Controls regarding the business, operations or prospects of the Business, except with the express writter:, consent of Johnson Controls.
7. For the eighteen (18) month period following the date of this Agreement, neither the Potential Acquirer nor any of its Representatives (on behalf of the Potential Acquirer), shall directly or indirectly, solicit for hire or engagement, or hire or engage any employee or full-time contractor of Johnson Controls (a "Restricted Employee") (a) who is or was during the six months prior to such proposed solicitation, hire, or engagement, engaged or employed by Johnson Controls in the Business, or (b) with whom the Potential Acquirer or its Representatives have come into contact with or have learned about in connection with the evaluation, negotiation or completion of a Potential Transaction; provided, however, that this paragraph shall not preclude soliciting pursuant to any professional search or general advertisements for employment placed by Potential Acquirer that is not targeted at Restricted Employees and hiring any respondents thereto shall not be considered solicitations or engagements hereunder.
8. Without the prior written consent of Johnson Controls, the Potential Acquirer agrees that it will not, and will cause its Representatives not to, enter into any agreement, arrangement or other understanding, whether written or oral, which could be expected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of any private equity firm, any other debt or equity financing source or other third party from providing financing or other assistance to any other party with respect to a transaction between Johnson Controls or any of its affiliates and another party (a "Conflicting Relationship"). To the extent Potential Acquirer is currently party, or hereafter becomes a party, to a Conflicting Relationship, it hereby waives any rights it may have under such Conflicting Relationship to the extent any such Conflicting Relationship would limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of any private equity firm, any other debt or equity financing source or other third party from providing financing or other assistance to any other party with respect to a transaction between Johnson Controls or any of its affiliates and another party.
9. Except for those representations and warranties that may be made in a definitive agreement between Johnson Controls and the Potential Acquirer concerning a Potential Transaction and the Business (if and when executed), the Potential Acquirer understands and agrees that none of Johnson Controls or any of its Representatives, (i) has made any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, including, without limitation, any financial projection, financing models, forecast or return on investment illustration (and any assumptions utilized in formulating any of the foregoing), or (ii) shall have any liability whatsoever to the Potential Acquirer or its Representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom.
10. The Potential Acquirer acknowledges that the covenants contained in this Agreement are fundamental for the protection of Johnson Controls' legitimate business and proprietary interests and that in the event of any violation by the Potential Acquirer of any such covenants, Johnson Controls' remedies at law would be inadequate. In the event of any violation or attempted violation of this Agreement, Johnson Controls shall be entitled to seek specific performance and injunctive relief or other equitable remedy, and the Potential Acquirer hereby waives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with any such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to Johnson Controls. Any trade secrets included in the Confidential Information will also be entitled to all of the protections and benefits under applicable trade secret law.
11. The Potential Acquirer understands that (i) Johnson Controls and its Representatives shall conduct the process for a Potential Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to the Potential Acquirer or any other party), (ii) any procedures relating to such a Potential Transaction may be changed at any time without notice to the Potential Acquirer, (iii) Johnson Controls shall have the right to reject or accept any potential buyer, proposal or offer, for any reason whatsoever, in its sole discretion, and (iv) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever against Johnson Controls or any of its Representatives arising out of or relating to a Potential Transaction (other than those against the parties to a definitive agreement with the Potential Acquirer in accordance with the terms thereof). The Potential Acquirer and Johnson Controls acknowledge and agree that this Agreement is entered into with the express understanding that neither Johnson Controls nor the Potential Acquirer is obligated to enter into or commence or continue any discussions or negotiations pertaining to the entry into a Potential Transaction, and that no such obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.
12. This Agreement will be governed by and construed in accordance with the laws of the State of New York. Wherever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. Potential Acquirer irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the federal or state courts sitting in the Borough of Manhattan, New York, New York (the "Relevant Courts") for any actions, suits or other proceedings arising out of or relating to this Agreement and the Potential Transaction (and Potential Acquirer agrees not to commence any action, suit or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by registered mail to Potential Acquirer's address of CT Corporation, Attn: Corporation Trust Center 1209 N. Orange St. Wilmington, DE 19801, shall be effective service of process for any action, suit or proceeding brought against it in any such court. Potential Acquirer also irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement in the Relevant Courts, and further irrevocably and unconditionally waives and agrees not to plead or claim in any Relevant Court that any such action, suit or proceeding brought in any Relevant Court has been brought in an inconvenient forum. This Agreement was negotiated by sophisticated parties at arms' length and neither party hereto shall be construed as the drafting party against which the Agreement could be construed.
13. Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect upon the second (2nd) year anniversary of this Agreement; provided, however, that with respect to Confidential Information which constitutes a trade secret under applicable law, the Potential Acquirer's obligations pursuant to this Agreement shall survive as long as the Confidential Information remains ·a trade secret.
14. This Agreement shall not be assignable by the Potential Acquirer without the written consent of Johnson Controls. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement. Johnson Controls reserves the right to assign its rights under this Agreement to any purchaser of all or any portion of the Business (including, without limitation, by way of merger, consolidation or purchase of assets).
15. Neither the failure nor any delay by Johnson Controls in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed to in a writing signed by Johnson Controls and the Potential Acquirer. This Agreement represents the entire understanding of the parties with respect to the matters referred to in this Agreement after the date hereof and supersedes all prior understandings, written or oral, between the parties with respect to such matters. This Agreement will not be modified or amended and the terms of this Agreement shall prevail, in the event of any inconsistency, over any additional purported confidentiality requirements imposed by an offering memorandum, web-based database, electronic data room or similar repository of Confidential Information to which the Potential Acquirer or its Representatives are granted access in connection with this Agreement or the Potential Transaction, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional confidentiality conditions.
17. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile) electronic mail, or in "portable document format" (".pdf') form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
18. In considering the Potential Transaction and reviewing the Confidential Information, Potential Acquirer acknowledges that it is acting solely on its own behalf and not as part of a group with any third parties. Potential Acquirer agrees that it will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any discussions with any party, other than Potential Acquirer's Representatives, concerning their participation in the Potential Transaction.
19. Johnson Controls upon the issuance by a court of law of a final, non-appealable order finding Potential Acquirer or any of its Representatives in breach of this Agreement, shall be entitled to recover its reasonable attorney's fees and costs (including, without limitation, costs of litigation, fees and costs of any appeal related thereto) incurred in connection with the successful enforcement of this Agreement (including and any appeals).
20. This Agreement also constitutes notice to Potential Acquirer that Johnson Controls has engaged Foley & Lardner LLP, Galicia Abogados, S.C, McMillan LLP and Cleary Gottlieb Steen & Hamilton LLP ("Subject Law Firms") as its legal counsel in connection with the Potential Transaction, and Potential Acquirer hereby (i) consents to the representation of each Subject Law Firm in connection with this Agreement and the continued representation of Johnson Controls by each Subject Law Firm in relation to the Potential Transaction notwithstanding the fact that any Subject Law Firm may have represented, and may currently or in the future represent, Potential Acquirer and/or any of its respective affiliates with respect to unrelated matters and (ii) waives any actual or alleged conflict and actual or alleged violation of ethical or comparable rules applicable to any Subject Law Firm that may arise from its representation of Potential Acquirer or any of its affiliates in connection with the Potential Transaction, including, without limitation, representing Johnson Controls against Potential Acquirer and/or its affiliates in litigation, arbitration, or mediation in connection therewith. In addition, Potential Acquirer hereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Potential Acquirer has obtained independent legal advice with respect to this consent and waiver. Potential Acquirer further agrees that it is aware of the extent of its and its affiliates respective relationships, if any, with each Subject Law Firm, and does not require additional information from any such firm in order to understand the nature of this consent and shall take any other action reasonably requested by Johnson Controls or any Subject Law Firm, including, without limitation, executing any additional waivers or acknowledgements, to carry out the purpose and intent of this paragraph. Each Subject Law Firm is an express third party beneficiary of this paragraph.
21. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of the Potential Acquirer's portfolio companies, investment professionals, Representatives, affiliates or affiliated investment funds that do not, directly or indirectly, receive, access or otherwise have access to any Confidential Information; provided, that, Johnson Controls acknowledges that Potential Acquirer's or its affiliates' directors, officers, employees or representatives may serve as directors (or similar capacities) and/or committee members of Potential Acquirer's affiliates and portfolio companies of investment funds managed or advised by Potential Acquirer, its affiliates or its or their respective managers (each, a "Dual Role Person"), and Johnson Controls agrees that such affiliates and portfolio companies will not be deemed to have received, accessed or have access to Confidential Information solely because any Dual Role Person serves on the board (or similar body) or any committee of such affiliate or portfolio company, provided that (i) none of such affiliates and portfolio companies or any other officer, director, employee agent, contractor or representative of such portfolio company or affiliate (except for other Dual Role Persons) directly or indirectly receives Confidential Information or otherwise accesses or has access at any time to Confidential Information; and (ii) such portfolio company does not act at the direction of or with encouragement from Potential Acquirer or its Representatives with respect to any matters prohibited by this Agreement. Download NDA in Word format