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Exhibit
99.1
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15
Koch Road
Corte Madera, California 94925
T 415.924.1005 F 415.927.9133
RestorationHardware.com |
R ESTORATION H
ARDWARE
CONFIDENTIAL
December 7, 2007
William R. Harker
Sears Holdings
Corporation
3333 Beverly Road
Hoffman Estates, IL
60179
Attention: William R.
Harker
CONFIDENTIALITY
AGREEMENT
Ladies and Gentlemen:
In connection with the
analysis of a possible business combination transaction between
Restoration Hardware, Inc. (the “ Company ”) and
Sears Holdings Corporation (the “ Interested Party
”) (the “ Transaction ”), the Company may
deliver to the Interested Party or its Representatives (as defined
below) certain Information (as defined below) concerning the
Company and the Transaction. Each of the Company and the Interested
Party are referred to herein as a “ Party ” and
collectively as the “ Parties .”
As used herein, “
Information ” means: (i) all oral and written
communications, data, reports, analyses, compilations, studies,
interpretations, forecasts, records, notes, asset lists, financial
statements and other materials or information (in whatever form
maintained, whether documentary, computer storage or otherwise)
that contain or otherwise reflect information concerning the
Company, any of its subsidiaries or affiliates or the Transaction,
or any portion of any thereof, that the Company or its
Representatives may provide to the Interested Party or its
Representatives in the course of the evaluation of the Transaction
(“ Provided Information ”), together with all
oral and written communications, data, reports, analyses,
compilations, studies, interpretations, forecasts, records, notes,
asset lists, financial statements or other materials or information
(in whatever form maintained, whether documentary, computer storage
or otherwise) prepared by the Interested Party or its
Representatives that contain or otherwise reflect or are based
upon, in whole or in part, any Provided Information or that reflect
the review of, interest in, or evaluation of all or any portion of
the Transaction (“ Derived Information ”);
(ii) the fact that discussions or negotiations are taking
place concerning the Transaction or that any Information has been
shared in connection therewith, the proposed terms and conditions
of the Transaction (including any financial terms and conditions),
and all Information related to such discussions or
CONFIDENTIAL
Sears Holdings Corporation
December 7, 2007
Page Two
sharing of Information or otherwise with
respect to the Transaction, including the status thereof; and
(iii) the existence, context, and scope of this
Agreement.
As used herein, “
Representatives ” means, collectively, the controlled
affiliates of the Interested Party or the Company, as the case may
be, and the respective directors, employees, members, financial
advisers, lenders, accountants, attorneys, agents and controlling
persons of the Interested Party or the Company, as the case may be,
or their controlled affiliates, but excluding any person that would
act as a co-bidder or other equity participant along with the
Interested Party in connection with the Transaction. As used
herein, the term “ person ” shall be broadly
interpreted to include, without limitation, any corporation,
entity, partnership, trust, group or individual.
The Interested Party and the
Company agree that, in consideration of being furnished with
Information by the Company, all Information shall be kept
confidential, including any information about the terms or
conditions or any other facts relating to a possible transaction
between Interested Party and the Company, and shall not, without
the prior written consent of the Company, be disclosed by the
Interested Party or its Representatives in any manner whatsoever,
in whole or in part, other than to the Interested Party’s
Representatives (to the extent permitted by the next sentence), and
shall not be used, directly or indirectly, for any purpose other
than in connection with evaluating the Transaction. Moreover, the
Interested Party agrees to reveal Information only to their
Representatives if and only to the extent that such
Representatives, in the reasonable judgment of the Interested
Party, need to know such Information for the purpose of evaluating
the Transaction and are informed of the confidential nature of the
Information and such Representatives have agreed to maintain the
confidential nature of the Information in accordance with the terms
of this Agreement. The Interested Party shall be responsible for
any disclosure or other action or inaction by the Interested
Party’s Representatives that would constitute a breach of
this Agreement if undertaken by the Interested Party, including
such Representatives who, subsequent to the first date of
disclosure of Information hereunder, become former Representatives.
The Interested Party acknowledges that the Company is subject to
certain obligations set forth in Section 5.3 of that certain
Merger Agreement, date as of November 8, 2007, by and among
the Company, Home Holdings, LLC, and Home Merger Sub, Inc. (the
“ Home Merger Agreement ”).
To the extent that any
Information may include material subject to the attorney-client
privilege, work product doctrine or any other applicable privilege
concerning pending or threatened legal proceedings or governmental
investigations, the Parties understand and agree that they have a
commonality of interest with respect to such matters and it is
their desire, intention and mutual understanding that the sharing
of such material is not intended to, and shall not, waive or
diminish in any way the confidentiality of such material or its
continued protection under the attorney-client privilege, work
product doctrine or other applicable privilege. All
CONFIDENTIAL
Sears Holdings Corporation
December 7, 2007
Page Three
Information provided by the Company that
is entitled to protection under the attorney-client privilege, work
product doctrine or other applicable privilege shall remain
entitled to such protection. Nothing in this Agreement obligates
the Company to reveal material subject to the attorney-client
privilege, work product doctrine or other applicable
privilege.
If either the Interested
Party or the Company determines that it does not wish to proceed
with the Transaction, such Party shall promptly advise the other
Party of that decision. In such case, or if a Transaction is not
otherwise consummated, or if the Company so requests, the
Interested Party shall promptly destroy or return to the Company
all copies (whether in hard-copy form or to the extent reasonably
practicable, on intangible media, such as electronic mail or
computer files) of the Provided Information in its possession and
in the possession of its Representatives, and will destroy all
copies (whether in hard-copy form or to the extent reasonably
practicable, on intangible media, such as electronic mail or
computer files) of any Derived Information (provided that any such
destruction of the Provided Information and any Derived Information
shall be certified by the Interested Party or its duly authorized
Representative). Notwithstanding the return or destruction of any
Information, or documents or material containing or reflecting any
Information, the Interested Party will continue to be bound by its
obligations of confidentiality and other obligations hereunder for
the term of this Agreement, except as otherwise specifically
provided herein.
The Interested Party shall
not initiate or maintain contact with any person known by the
Interested Party to be an officer, director, shareholder, employee
or agent of the Company or its subsidiaries regarding a
Transaction, except with the express written consent of the Company
(which consent may be granted by the Independent Committee of the
Board of Directors of the Company (the “ Independent
Committee ”)). It is further understood that all
(i) communications regarding a possible Transaction by the
Interested Party with the Company, (ii) requests for
additional information from the Company by the Interested Party,
(iii) requests for on-site access or management meetings with
the Company by the Interested Party and (iv) discussions with
the Company or questions regarding procedures established by the
Company by the Interested Party, will be submitted or directed to
persons designated by the Independent Committee for such purpose,
which may be designated legal counsel or financial advisor for the
Independent Committee.
This Agreement shall not
apply to such of the Information as: (i) is or becomes
generally available to the public other than as a result of any
disclosure or other action or inaction by the Interested Party in
breach of this Agreement (including any disclosure or other action
or inaction by the Interested Party’s Representatives that
would constitute a breach of this Agreement if undertaken by the
Interested Party); (ii) is or becomes known or available to
the Interested Party or any of its Representatives on a
nonconfidential basis from a source (other than the Company or any
of its subsidiaries, affiliates or Representatives) that, to the
best of the Interested Party’s
CONFIDENTIAL
Sears Holdings Corporation
December 7, 2007
Page Four
knowledge, after reasonable inquiry, is
not prohibited from disclosing such Information to the Interested
Party by a contractual, legal or fiduciary obligation owed to the
Company or its Representatives; (iii) is already in the
possession of the Interested Party or any of its Representatives or
is independently developed by the Interested Party or any of its
Representatives without violation of any obligation under this
Agreement; (iv) is or becomes known to the Interested Party or
any of its Representatives prior to the Company’s disclosure
of such Information to the Interested Party; or (v) is
disclosed by the Interested Party with the prior written approval
of the Company.
The Interested Party
(i) acknowledges that except as may be set forth in definitive
transaction agreements, neither the Company nor any of the
Company’s subsidiaries, affiliates or Representatives makes
any representation or warranty (express or implied) as to the
accuracy or completeness of any Information, and (ii) agrees
to assume full responsibility for all conclusions the Interested
Party derives from the Information. The Interested Party shall be
entitled to, and shall, rely solely on representations and
warranties made by the Company in any final agreement relating to
the Transaction. Nothing contained in this Agreement nor the
conveying of Information hereunder shall be construed as granting
or conferring any rights by license or otherwise in any
intellectual property.
In the event that the
Interested Party or any of its Representatives becomes legally
compelled (by oral questions, interrogatories, requests for
Information or documents, subpoenas, civil investigative demands or
otherwise) to disclose any such Information, the Interested Party
shall provide the Company with prompt written notice so that the
Company may seek a protective order or other appropriate remedy, or
both, or waive compliance with the provisions of this Agreement. In
the event that the Company is unable to obtain a protective order
or other appropriate remedy, or if it so directs the Interested
Party, the Interested Party or its Representatives, as the case may
be, may furnish only that portion
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