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Exhibit (d)(5)
Tupperware Corporation
Thomas M. Roehlk
Senior Vice President
General Counsel & Secretary
August 18, 2000
Mr. Richard W. Heath
President and Chief Executive Officer
BeautiControl Cosmetics, Inc.
2121 Midway
Carrollton, Texas 75006
Dear Mr. Heath:
In connection with a possible combination or corporate transaction
(the "Transaction") between Tupperware Corporation ("Tupperware") and
BeautiControl Cosmetics, Inc. ("BeautiControl") (individually, a "Party," and
collectively, the "Parties"), each Party may disclose and/or deliver to the
other Party certain information about its properties, employees, finances,
businesses and operations (such Party when disclosing such information being the
"Disclosing Party" and such Party when receiving such information being the
"Receiving Party"). All such information furnished by the Disclosing Party or
any of its Representatives (as defined below), whether furnished before or after
the date hereof (whether in oral or written form, electronically stored, or
otherwise) and regardless of the manner in which it is furnished, is referred to
in this confidentiality agreement as "Information". It is understood and agreed
that this agreement creates no obligation to enter into any Transaction or any
agreement relating to a Transaction. The Parties hereby agree as follows:
1. As used herein:
"Act" means the Securities Exchange Act of 1934, as amended;
"Affiliate" means any Person that (i) directly or indirectly controls
a Party, (ii) directly or indirectly is controlled by a Party or (iii) is under
direct or indirect common control with a Party;
"Person" shall have the meaning contained in Section 3(a)(9) of the
Act; and
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"Representative" or "Representatives" of a Party means such Party's
officers, directors, partners, shareholders, employees, accountants,
attorneys, agents, consultants, advisors, financing sources and financial
institutions.
"Restricted Period" means the two-year period commencing on the date
hereof.
2. All information will be kept confidential by a Party, except that the
Party may disclose or make available information to its directors, officers
and employees and to Representatives of its advisors for the exclusive
purpose of assisting in the evaluation of a possible Transaction, all of
whom shall be specifically informed by the Party of the confidential
character of such information and that by receiving such information they
are agreeing to be bound by the terms of this agreement relating to the
confidential treatment of such information. A Receiving Party will not use,
or permit any of its representatives to use, any of the information for any
purpose other than the evaluation of a possible Transaction, and will not
make any information available to any Person for any other purpose
whatsoever.
3. The Parties hereby acknowledge that they are aware (and that prior to
the disclosure of any information by a Receiving Party to any Person
pursuant to paragraph 2 such Person will be advised) that the United States
securities laws prohibit any Person who has material non-public information
about a company from purchasing or selling securities of such company or
from communicating such information to any other Person under circumstances
in which it is reasonably foreseeable that such Person is likely to
purchase or sell such securities. In the event that a Receiving Party
discloses any information to any Person, whether or not such disclosure is
permitted under paragraph 2, the Receiving Party shall be liable to the
Disclosing Party for any failure by such Person to treat such information
in the same manner as the Receiving Party is obligated to treat such
information under the terms of this agreement.
4. If at any time during the Restricted Period a Party is approached by
any Person concerning participation in a transaction involving any of the
assets, businesses or securities of the other Party or any subsidiary
thereof, the Party will promptly inform the other Party of the nature of
such contact and the parties thereto.
5. Except with the Party's prior written approval, the other Party will
not disclose, or permit its representatives to disclose, to any Person
other than the Persons described in paragraph 2, the fact that the Party is
engaged in discussions with the other Party regarding a Transaction, the
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August 18, 2000
fact that the Information has been made available to the other Party or
that the other Party has inspected any portion of the Information.
6. In the event that a Party is requested in any proceeding to disclose
any Information received by such Party or any matter subject to paragraph
5, the Party will give the other Party prompt notice of such request so
that it may seek an appropriate protective order. If in the absence of a
protective order the Party is nonetheless compelled to disclose any such
Information or matter, it may disclose such Information or matter without
liability hereunder, provided that it gives the other Party written notice
of the Information or matter to be disclosed as far in advance of its
disclosure as is practicable and uses its best efforts to obtain assurances
that confidential treatment will be accorded to such Information or matter.
7. The restrictions with respect to Information set forth in paragraph 2
shall not apply to any Information furnished by the Disclosing Party or its
Representatives which the Receiving Party demonstrates (i) is on the date
hereof or hereafter becomes generally available to the public other than as
a result of a disclosure, directly or indirectly, by the Disclosing Party
or your Representatives or (ii) was available to the Receiving Party on a
nonconfidential basis prior to its disclosure by the Disclosing Party or
its Representatives or becomes available to the Receiving Party on a
nonconfidential basis, in each case from a source other than the Disclosing
Party or its Representatives, which source was not itself bound by a
confidentiality agreement with the Disclosing Party or its Representatives
and had not received such Information, directly or indirectly, from a
Person so bound.
8. The Disclosing Party does not make any representation or warranty as
to the accuracy or completeness of the Information provided by it. Neither
the disclosing Party nor any of its Representatives shall have any
liability resulting from the use of the Information by Receiving Party or
any of its Representatives.
9. Upon our request at any time, the Receiving Party will promptly
redeliver to the Disclosing Party all copies of documents containing
Information and will promptly destroy all memoranda, notes and other
writings prepared by the Receiving Party or by any Person referred to in
paragraph 2 based on such Information.
10. During the Restricted Period, a Party will not (and will not assist or
encourage others to) solicit the services, as employee, consultant or
otherwise, of any employee of the other Party.
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August 18, 2000
11. Each Party shall cause each of its Affiliates to comply with the terms
of paragraphs 2, 3, 4, 5, 6, 7, 9 and 10 (construing such paragraphs for
such purposes to refer also to such Affiliates in each instance where there
is a reference to the affected Party).
12. Each Party acknowledges that irreparable damage would occur to the
other Party in the event any of the provisions of this agreement were not
performed in accordance with their specific terms or were otherwise
breached. Accordingly, each Party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this agreement and to
enforce specifically the terms and provisions hereof in any court of
competent jurisdiction in the United States of America or any state
thereof, in addition to any other remedy to which a Party may be entitled
at law or in equity.
13. If any term or provision of this agreement or any application hereof
shall be invalid or unenforceable, the remainder of this agreement and any
other application of such term or provision shall not be affected thereby.
14. This agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but such
counterparts shall constitute one and the same instrument.
15. This agreement contains the entire understanding of the parties hereto
with respect to the matters covered hereby and may be amended only by an
agreement in writing executed by the Parties.
16. This agreement shall be binding upon, inure to the benefit of and be
enforceable by each Party's respective successors and assigns.
17. This agreement shall be governed by and construed in accordance with
the internal laws (as opposed to conflict of law provisions) of the State
of Florida.
* * * * * *
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August 18, 2000
If the foregoing correctly sets forth our agreement as to the matters
set forth herein, please confirm our agreement by executing and returning a copy
of this agreement to the undersigned.
Very truly yours,
Tupperware Corporation
By: /s/ Thomas M. Roehlk
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Name: Thomas M. Roehlk
Title: Senior Vice President,
General Counsel and
Secretary
The foregoing terms are agreed to:
BeautiControl Cosmetics, Inc.
By: ________________________
Name: Richard W. Heath
Title: President and Chief Executive Officer
