Exhibit 10.1
CONFIDENTIALITY, STANDSTILL AND BOARD
REPRESENTATION AGREEMENT
This
Confidentiality, Standstill and Board Representation Agreement (the
“Agreement”) is made as of the 7th day of July, 2005 by
and between Artesyn Technologies, Inc. (“ARTESYN”) and
JANA Partners LLC (“JANA”, and together with ARTESYN,
the “Parties”).
1.
BACKGROUND. ARTESYN and JANA intend to engage in discussions
concerning potential strategic alternatives that JANA, as a
significant stockholder of ARTESYN, believes that ARTESYN should
evaluate; and ARTESYN is prepared to furnish to JANA and to
JANA’s directors, officers, members, employees and agents, as
applicable (collectively, “Representatives”), certain
of its confidential or proprietary information and use its best
efforts to cause a designee of JANA to be appointed to the ARTESYN
Board of Directors (the “Board”). The Parties are
entering into this Agreement in order to assure the confidentiality
of the Confidential Information (as defined below) in accordance
with the terms of this Agreement and to provide the terms upon
which JANA will be entitled to have a designee appointed to and
remain on the Board.
2.
CONFIDENTIAL INFORMATION. As used in this Agreement,
the term “Confidential Information” shall mean all
information and data of ARTESYN or any of its affiliates furnished
to JANA or any of its Representatives pursuant to this Agreement by
or on behalf of ARTESYN, but does not include information that(i)
was known by JANA or available to the public prior to the time of
its disclosure, (ii) becomes available to the public through no act
or omission of JANA or (iii) becomes available to JANA from a third
party not known by JANA to be under any obligation of
confidentiality to ARTESYN with respect thereto. In addition, the
term “Confidential Information” shall be deemed to
include any notes, analyses, compilations, studies,
interpretations, memoranda or other documents prepared by JANA or
its Representatives that contain, reflect or are based upon, in
whole or in part, or recollections or memorizations of, any
Confidential Information furnished to JANA or its Representatives
pursuant hereto.
3.
USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION. JANA
and its Representatives shall use the Confidential Information only
to assist JANA in evaluating potential strategic alternatives
available to ARTESYN. The Confidential Information shall not be
used or exploited for any other purpose without the prior written
consent of ARTESYN. JANA and its Representatives shall hold in
strict confidence, and shall not use or disclose any Confidential
Information, except as may be required by law in the opinion of
JANA’s outside counsel. In the event of any such disclosure
pursuant to court order or governmental request, JANA will provide
ARTESYN with reasonable prior written notice so that ARTESYN may
seek a protective order or other appropriate remedy, and JANA shall
exercise reasonable efforts to assist ARTESYN in obtaining such
order or remedy. JANA shall disclose Confidential Information to
its Representatives only on a need to know basis for the purpose
specified herein. In any event, JANA shall be responsible for
any breach of this Agreement by any of its Representatives, and
agrees, at its sole expense, to use reasonable best efforts to
safeguard the Confidential Information and restrain its
Representatives from any prohibited or unauthorized disclosure or
use of the Confidential Information. In addition, JANA hereby
acknowledges that the federal securities laws, including Regulation
FD thereof, impose restrictions on its ability to purchase, sell,
trade or otherwise transfer securities of ARTESYN until such time
as the material, non-public information provided by ARTESYN to JANA
becomes publicly available or is no longer material and JANA
further agrees hereby to comply with all such
restrictions.
4.
RETURN OF CONFIDENTIAL INFORMATION. JANA shall, upon
conclusion of discussions between the Parties hereto, or at any
earlier time upon ARTESYN’s request, return to ARTESYN all
documents furnished to JANA by or on behalf of ARTESYN containing
Confidential Information, and JANA shall destroy all copies,
electronic or otherwise, of such material together with any notes,
extracts and other materials prepared by JANA or JANA’s
Representatives containing or based upon any Confidential
Information. In addition, upon the written request of ARTESYN, JANA
shall deliver an officer’s certificate certifying that it has
complied with the provisions of this Section 4.
5.
ACCURACY AND COMPLETENESS. While ARTESYN shall
endeavor to furnish information that it considers to be relevant
for the purpose of JANA’s investigation, neither ARTESYN nor
its Representatives makes any representations or warranties as to
the accuracy or completeness of the Confidential Information. JANA
agrees that neither ARTESYN nor any of its Representatives shall
have any liability to JANA resulting from JANA’s disclosure
or use of the Confidential Information, whether or not permitted
hereby.
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