SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D**
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
CRSS Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
126270107
(Cusip Number)
J. Taylor Crandall
201 Main Street, Suite 3100
Fort Worth, Texas 76102
(817) 390-8500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 23, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [].
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
**The total number of shares reported herein is 1,241,500 shares, which
constitutes approximately 9.7% of the total number of shares outstanding. All
ownership percentages set forth herein assume that there are 12,808,096 shares
outstanding.
<PAGE>
<PAGE>
1. Name of Reporting Person:
Alpine Capital, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: WC
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 1,177,700 (1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 1,177,700 (1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,177,700
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 9.2%
14. Type of Reporting Person: PN
------------
(1) Power is exercised through its two general partners, Robert W. Bruce III
and Algenpar, Inc.
<PAGE>
<PAGE>
1. Name of Reporting Person:
Robert W. Bruce III
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: -0-
Number of
Shares
Beneficially 8. Shared Voting Power: 1,241,500 (1)
Owned By
Each
Reporting 9. Sole Dispositive Power: -0-
Person
With
10. Shared Dispositive Power: 1,241,500 (1)
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,241,500 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 9.7%
14. Type of Reporting Person: IN
-------------
(1) Solely in his capacity as one of two general partners of Alpine Capital,
L.P., with respect to 1,177,700 shares, and in his capacity as a principal
of The Robert Bruce Management Co., Inc., which has shared investment
discretion over shares owned by The Anne T. and Robert M. Bass Foundation,
with respect to 63,800 shares.
<PAGE>
<PAGE>
1. Name of Reporting Person:
Algenpar, Inc.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: -0-
Number of
Shares
Beneficially 8. Shared Voting Power: 1,177,700 (1)(2)
Owned By
Each
Reporting 9. Sole Dispositive Power: -0-
Person
With
10. Shared Dispositive Power: 1,177,700 (1)(2)
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,177,700 (2)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 9.2%
14. Type of Reporting Person: CO
------------
(1) Power is exercised through its President, J. Taylor Crandall.
(2) Solely in its capacity as one of two general partners of Alpine Capital,
L.P.
<PAGE>
<PAGE>
1. Name of Reporting Person:
J. Taylor Crandall
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: -0-
Number of
Shares
Beneficially 8. Shared Voting Power: 1,241,500 (1)
Owned By
Each
Reporting 9. Sole Dispositive Power: -0-
Person
With
10. Shared Dispositive Power: 1,241,500 (1)
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,241,500 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 9.7%
14. Type of Reporting Person: IN
------------
(1) Solely in his capacity as President and sole stockholder of Algenpar,
Inc., which is one of two general partners of Alpine Capital, L.P., with
respect to 1,177,700 shares, and in his capacity as a director of The Anne
T. and Robert M. Bass Foundation, with respect to 63,800 shares.
<PAGE>
<PAGE>
1. Name of Reporting Person:
The Anne T. and Robert M. Bass Foundation
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Working Capital
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 63,800 (1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 63,800 (1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
63,800
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 0.5%
14. Type of Reporting Person: CO
------------
(1) Power is exercised through its three directors, Anne T. Bass, Robert M.
Bass and J. Taylor Crandall and through Robert W. Bruce III in his
capacity as a principal of The Robert Bruce Management Co., Inc., which
has shared investment discretion over shares owned by The Anne T. and
Robert M. Bass Foundation.
<PAGE>
<PAGE>
1. Name of Reporting Person:
Anne T. Bass
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: -0-
Number of
Shares
Beneficially 8. Shared Voting Power: 63,800 (1)
Owned By
Each
Reporting 9. Sole Dispositive Power: -0-
Person
With
10. Shared Dispositive Power: 63,800 (1)
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
63,800 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 0.5%
14. Type of Reporting Person: IN
------------
(1) Solely in her capacity as a director of The Anne T. and Robert M. Bass
Foundation.
<PAGE>
<PAGE>
1. Name of Reporting Person:
Robert M. Bass
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: -0-
Number of
Shares
Beneficially 8. Shared Voting Power: 63,800 (1)
Owned By
Each
Reporting 9. Sole Dispositive Power: -0-
Person
With
10. Shared Dispositive Power: 63,800 (1)
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
63,800 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 0.5%
14. Type of Reporting Person: IN
------------
(1) Solely in his capacity as a director of The Anne T. and Robert M. Bass
Foundation.
<PAGE>
<PAGE>
Pursuant to Rule 13d-2(a) of Regulation 13D-G of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Act"),
the undersigned hereby amend their Schedule 13D Statement dated November 4,
1994, as amended by Amendment No. 1 dated December 6, 1994 and Amendment No. 2
dated February 8, 1995 (the "Schedule 13D"), relating to the Common Stock, par
value $1.00 per share (the "Stock"), of CRSS Inc. (the "Issuer"). Unless
otherwise indicated, all defined terms used herein shall have the same meanings
respectively ascribed to them in the Schedule 13D.
Item 1. SECURITY AND ISSUER.
No material change.
Item 2. IDENTITY AND BACKGROUND.
No material change.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 hereby is amended in its entirety to read as follows:
The source and amount of the funds used by the Reporting Persons to
purchase shares of the Stock are as follows:
REPORTING PERSON SOURCE OF FUNDS AMOUNT OF FUNDS
Alpine Working Capital(1) $12,747,477.00
Bruce Not Applicable Not Applicable
Algenpar Not Applicable Not Applicable
Crandall Not Applicable Not Applicable
Foundation Working Capital(1) $ 697,402.00
A. Bass Not Applicable Not Applicable
R. Bass Not Applicable Not Applicable
(1) As used herein, the term "Working Capital" includes income from the
business operations of the entity plus sums borrowed from banks and brokerage
firm margin accounts to operate such business in general. None of the funds
reported herein as "Working Capital" were borrowed or otherwise obtained for the
specific purpose of acquiring, handling, trading or voting the Stock.
Item 4. PURPOSE OF TRANSACTION.
Item 4 is hereby partially amended by adding at the end thereof the
following:
By letter dated May 23, 1995 to the Issuer, Keystone requested that the
Issuer provide it with a copy of any and all written materials provided by the
Issuer and/or its investment bankers to American Tractebel Corporation ("ATC")
and other parties in connection with a proposed acquisition or purchase of all
or a material amount of the assets of, or any securities of, or any merger,
consolidation or business combination with the Issuer or any of its subsidiaries
(collectively, an "Extraordinary Transaction".) A copy of the letter is set
forth as Exhibit 99.2 transmitted herewith. In its letter, Keystone further
requested that it be provided with copies of any and all opinions or advice of
investment bankers or financial advisors to the Issuer as to the fairness of the
ATC bid or any other proposed Extraordinary Transaction. The letter stated that
Keystone was requesting the documents described above in order to evaluate the
fairness of the ATC bid and possibly to evaluate any preliminary interest that
Keystone might have in proposing an Extraordinary Transaction. To date, neither
Keystone nor any of the Reporting Persons have formulated any intent or plans
or proposals regarding an Extraordinary Transaction and there can be no
assurance that any such intent, plans or proposals will be formulated in the
future.
Effective May 24, 1995, Keystone and the Issuer entered into a
Confidentiality Agreement, a copy of which is transmitted herewith as Exhibit
99.3. The description of the Confidentiality Agreement that follows is not, and
does not purport to be, complete, and is qualified in its entirety by reference
to the Confidentiality Agreement.
Pursuant to the Confidentiality Agreement, among other things, Keystone
agreed to keep confidential any information it receives pursuant to its request
discussed above, and agreed not to disclose any such information without the
prior written consent of the Issuer. Under the terms of the Confidentiality
Agreement, Keystone and its affiliates, without the prior written consent of the
Issuer, are precluded from (i) acquiring, directly or indirectly, any voting
securities of the Issuer or rights to acquire any such securities, (ii)
soliciting, directly or indirectly, proxies to vote, or seeking to advise or
influence any person or entity with respect to the voting of, any voting
securities of the Issuer, (iii) making any public announcement with respect to,
or submitting a proposal for or offer of, any extraordinary transaction
involving the Issuer, or (iv) participating in a "group" (as defined in Section
13(d)(3) of the Act) in connection with any of the foregoing, for a period of
two years from the effective date of the Confidentiality Agreement. Keystone
also acknowledged in the Confidentiality Agreement that it is aware of the
restrictions imposed by United States securities laws on the purchase or sale
of securities by a person with possession of material, non-public information
received from the issuer of such securities and on the communication of any such
information to any other person who is likely to purchase or sell such
securities in reliance upon such information.
Except as set forth in this Item 4, the Reporting Persons have no present
plans or proposals that relate to or that would result in any of the actions
specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Act.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Paragraphs (a) - (c) of Item 5 are hereby amended in their entireties as
follows:
(a)
ALPINE
The aggregate number of shares of the Stock that Alpine owns beneficially,
pursuant to Rule 13d-3(d)(1)(i) of the Act, is 1,177,700, which constitutes
approximately 9.2% of the outstanding shares of the Stock.
BRUCE
Because of his position as one of two general partners of Alpine and as
principal of Bruce Management (which has shared investment discretion over the
shares of Stock owned by the Foundation), Bruce may, pursuant to Rule 13d-3 of
the Act, be deemed to be the beneficial owner of 1,241,500 shares of the Stock,
which constitutes approximately 9.7% of the outstanding shares of the Stock.
ALGENPAR
Because of its position as one of two general partners of Alpine, Algenpar
may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of
1,177,700 shares of the Stock, which constitutes approximately 9.2% of the
outstanding shares of the Stock.
CRANDALL
Because of his positions as President and sole stockholder of Algenpar, one
of two general partners of Alpine and a director of Foundation, Crandall may,
pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of
1,241,500 shares of the Stock, which constitutes approximately 9.7% of the
outstanding shares of the Stock.
FOUNDATION
The aggregate number of shares of the Stock that Foundation owns
beneficially, pursuant to Rule 13d-3(d)(1)(i) of the Act, is 63,800, which
constitutes approximately 0.5% of the outstanding shares of the Stock.
A. BASS
Because of her position as a director of Foundation, A. Bass may, pursuant
to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 63,800 shares
of the Stock, which constitutes approximately 0.5% of the outstanding shares of
the Stock.
R. BASS
Because of his position as a director of Foundation, R. Bass may, pursuant
to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 63,800 shares
of the Stock, which constitutes approximately 0.5% of the outstanding shares of
the Stock.
To the best of the knowledge of each of the Reporting Persons, other than
as set forth above, none of the persons named in Item 2 herein is the beneficial
owner of any shares of the Stock.
(b)
ALPINE
Acting through its two general partners, Alpine has the sole power to vote
or to direct the vote and to dispose or to direct the disposition of 1,177,700
shares of the Stock.
BRUCE
As one of two general partners of Alpine, Bruce has shared power to vote
or to direct the vote and to dispose or to direct the disposition of 1,177,700
shares of the Stock. As principal of Bruce Management (which exercises shared
investment discretion over the shares of the Stock owned by the Foundation),
Bruce has shared power to vote or to direct the vote and to dispose or to direct
the disposition of 63,800 shares of the Stock.
ALGENPAR
As one of two general partners of Alpine, Algenpar has shared power to vote
or to direct the vote and to dispose or to direct the disposition of 1,177,700
shares of the Stock.
CRANDALL
As the President and sole stockholder of Algenpar, which is one of two
general partners of Alpine, Crandall has shared power to vote or to direct the
vote and to dispose or to direct the disposition of 1,177,700 shares of the
Stock. As one of three directors of Foundation, Crandall has shared power to
vote or to direct the vote and to dispose or to direct the disposition of
63,800 shares of the Stock.
FOUNDATION
Acting through its three directors and Bruce (as principal of Bruce
Management which exercises shared investment discretion over the shares of the
Stock owned by the Foundation), Foundation has the sole power to vote or to
direct the vote and to dispose or to direct the disposition of 63,800 shares of
the Stock.
A. BASS
As one of three directors of Foundation, A. Bass has shared power to vote
or to direct the vote and to dispose or to direct the disposition of 63,800
shares of the Stock.
R. BASS
As one of three directors of Foundation, R. Bass has shared power to vote
or to direct the vote and to dispose or to direct the disposition of 63,800
shares of the Stock.
(c) In the past 60 days, the Reporting Persons have purchased shares of
the Stock in open market transactions on the New York Stock Exchange, as
follows:
REPORTING NO. OF SHARES PRICE PER
PERSON DATE PURCHASED SHARE
ALPINE 03-23-95 5,700 $ 9.30
ALPINE 03-24-95 15,000 9.43
ALPINE 03-30-95 6,000 9.18
FOUNDATION 03-31-95 700 9.18
ALPINE 04-03-95 3,100 9.05
ALPINE 04-04-95 2,000 9.43
ALPINE 04-10-95 900 9.30
ALPINE 05-09-95 10,000 9.30
ALPINE 05-10-95 4,000 9.30
Except as set forth in this paragraph (c), to the best of the knowledge of
each of the Reporting Persons, none of the persons named in response to
paragraph (a) has effected any transactions in the shares of the Stock in the
past 60 days.
(d) No material change.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
No material change.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.1 --Agreement pursuant to Rule 13d-1(f)(1)(iii).
Exhibit 99.2 --Letter dated May 23, 1995 to Issuer from Keystone
Exhibit 99.3 - Confidentiality Agreement dated effective as of May 24,
1995, by and between Keystone and the Issuer.
<PAGE>
<PAGE>
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
DATED: May 25, 1995
ALPINE CAPITAL, L.P.
By: /s/ Robert W. Bruce III
Robert W. Bruce III,
Manager
/s/ Robert W. Bruce III
ROBERT W. BRUCE III
ALGENPAR, INC.
By: /s/ J. Taylor Crandall
J. Taylor Crandall,
President
/s/ J. Taylor Crandall
J. TAYLOR CRANDALL
/s/ W. R. Cotham
W. R. Cotham,
Attorney-in-Fact for:
THE ANNE T. AND ROBERT M.
BASS FOUNDATION (1)
ANNE T. BASS (2)
ROBERT M. BASS (3)
(1) A Power of Attorney authorizing W. R. Cotham, et al., to act on behalf of
The Anne T. and Robert M. Bass Foundation previously has been filed with
the Securities and Exchange Commission.
(2) A Power of Attorney authorizing W. R. Cotham, et al., to act on behalf of
Anne T. Bass previously has been filed with the Securities and Exchange
Commission.
(3) A Power of Attorney authorizing W. R. Cotham, et al., to act on behalf of
Robert M. Bass previously has been filed with the Securities and Exchange
Commission.
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit Description
-------- -----------
99.1 Agreement pursuant to Rule 13d-1(f)(1)(iii), filed
herewith
99.2 Letter to Issuer dated May 23, 1995 from Keystone
99.3 Confidentiality Agreement dated effective as of May
24, 1995, by and between Keystone and the Issuer
Exhibit 99.1
Pursuant to Rule 13d-1(f)(1)(iii) of Regulation 13D-G of the General Rules
and Regulations of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, the undersigned agrees that the statement to
which this Exhibit is attached is filed on behalf of each of them in the
capacities set forth below.
ALPINE CAPITAL, L.P.
By: /s/ Robert W. Bruce III
Robert W. Bruce III,
Manager
/s/ Robert W. Bruce
ROBERT W. BRUCE III
ALGENPAR, INC.
By: /s/ J. Taylor Crandall
J. Taylor Crandall,
President
/s/ J. Taylor Crandall
J. TAYLOR CRANDALL
/s/ W. R. Cotham
W. R. Cotham,
Attorney-in-Fact for:
THE ANNE T. AND ROBERT M.
BASS FOUNDATION (1)
ANNE T. BASS (2)
ROBERT M. BASS (3)
(1) A Power of Attorney authorizing W. R. Cotham, et al., to act on behalf of
The Anne T. and Robert M. Bass Foundation previously has been filed with
the Securities and Exchange Commission.
(2) A Power of Attorney authorizing W. R. Cotham, et al., to act on behalf of
Anne T. Bass previously has been filed with the Securities and Exchange
Commission.
(3) A Power of Attorney authorizing W. R. Cotham, et al., to act on behalf of
Robert M. Bass previously has been filed with the Securities and Exchange
Commission.
EXHIBIT 99.2
KEYSTONE, INC.
201 MAIN STREET
FORT WORTH, TEXAS 76102
817/390/8500-FAX 817/338-2064
May 23, 1995
VIA FACSIMILE
FOLLOWUP VIA FEDERAL EXPRESS
Mr. Bruce W. Wilkinson
Chairman and Chief Executive Officer
CRSS Inc.
Suite 800
1177 West Loop South
Houston, Texas 77027
Mr. Gene G. Lewis
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
3400 Texas Commerce Tower
Houston, Texas 77002
Gentlemen:
We note the announcement on May 17, 1995, by CRSS Inc. ("CRSS") that it had
entered into a Merger Agreement with American Tractebel Corporation ("ATC") and
a subsidiary of ATC.
Keystone, Inc. hereby requests that it be provided with a copy of any and
all written documents and data provided by CRSS and/or its investment bankers
to ATC and other parties to whom CRSS and/or its investment bankers provided
information in connection with a proposed acquisition or purchase of all or a
material amount of the assets of, or any securities of, or any merger,
consolidation or business combination with CRSS or any of its subsidiaries
(collectively, an "Extraordinary Transaction"). In addition, Keystone, Inc.
hereby requests that it be provided with copies of any and all opinions or
advice of investment bankers or financial advisors to CRSS as to the fairness
of the ATC bid or any other proposed Extraordinary Transaction(s).
The purpose of the foregoing requests is to allow Keystone, Inc. to
evaluate the fairness of the ATC bid and, possibly, to evaluate any preliminary
interest that Keystone, Inc. might have in proposing an Extraordinary
Transaction. Keystone, Inc. has not, to date, formulated any intent to propose
an Extraordinary Transaction.
As we first communicated this request on May 19 and because the ATC tender
offer is to commence no later than tomorrow, we request an immediate response
to this letter.
Yours very truly,
KEYSTONE, INC.
By: /s/ J. Taylor Crandall
J. Taylor Crandall, Vice President-Finance
EXHIBIT 99.3
May 24, 1995
Keystone, Inc.
201 Main Street
Fort Worth, Texas 76102
Attention: J. Taylor Crandall
Vice President-Finance
CONFIDENTIALITY AGREEMENT
Gentlemen:
In connection with your possible interest in a merger, consolidation, share
exchange, or other business combination (the "Transaction") involving CRSS Inc.
(the "Company"), you have requested 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,
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 now, however,
include information which (i) is or becomes publicly available other than as a
result of a disclosure by you or your Representatives or (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.
Accordingly, you hereby agree that:
1. 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.
2. You and your Representatives will not (except as required by applicable
law, regulation or legal process, and only after compliance with paragraph
3 below), and except as in the reasonable opinion of counsel to you is
required pursuant to Section 13(d) of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder
(collectively, "Section 13 Disclosure")), 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.
3. 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, other than in connection with Section
13 Disclosure, 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 waives 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.
4. If you determine not to proceed with the Transaction, you will promptly
inform Mr. Bruce W. Wilkinson, Chairman and Chief Executive Officer of the
Company, Mr. William J. Gardiner, Senior Vice President, Chief Financial
Officer and Treasurer of the Company, Mr. Timothy R. Dunne, Vice
President, General Counsel and Secretary of the Company, or Mr. Gene G.
Lewis or Mr. H. William Swanstrom, partners of Liddell, Sapp, Zivley, Hill
& LaBoon, L.L.P., our outside counsel (collectively, "Authorized Contact
Persons") 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.
5. You acknowledge that neither we, nor our other Representatives (including
Morgan Stanley & Co. Incorporated ("Morgan Stanley")) and its affiliates,
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 executed written definitive agreement expressly providing that it
is the legally binding and enforceable obligation of the parties thereto
("Definitive Agreement") with respect to the Transaction, subject to such
limitations and restrictions as may be contained therein.
6. You are aware, and you will advise your Representatives who are informed
of the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the purchase
or sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of
such information to any other person when it is reasonably foreseeable
that such other person is likely to purchase or sell such securities in
reliance upon such information.
7. You agree that, for a period of two years from the date of this letter
agreement, neither you nor any of your affiliates will, without the prior
written consent of the Company or its 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 and 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; or (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. You will
promptly advise the Company of any inquiry or proposal made to you with
respect to any of the foregoing.
8. You agree that, for a period of two years 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 on his or her own initiative without any direct or indirect
solicitation by or encouragement from you.
9. 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 an
Authorized Contact Person, and not to any other Representative of 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.
10. 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.
11. 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.
12. This letter agreement will be governed by and construed in accordance with
the laws of the State of New York applicable to contracts between
residents of that state and executed in and to be performed in that state.
You agree that any suit to enforce this letter agreement or to obtain any
remedy with respect to the subject matter hereof may be brought in the
United States District Court for the Southern District of Texas, Houston
Division, or any court of the State of Texas located in Harris County.
13. 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 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,
CRSS INC.
By: /s/ Bruce W. Wilkinson
Name: Bruce W. Wilkinson
Title: Chief Executive Officer
Accepted and Agreed as of the date first
written above:
KEYSTONE, INC.
By: /s/ W. R. Cotham
Name: W. R. Cotham
Title: Vice President
