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Exhibit (d)(3)
OCTOBER 10, 2000
GENERAL ELECTRIC CAPITAL CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CONFIDENTIALITY AGREEMENT
Dear Sirs:
In connection with your possible interest in the proposed sale, merger or other
business combination involving all or substantially all of the business,
securities or assets (the "Transaction") of ▇▇▇▇▇▇▇ Truck Leasing Corp. (the
"Company"), you have requested that 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 (collectively, "our Representatives") to
you or your 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 not, 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, or (iii) is independently developed by you or an affiliate
without access to the Information.
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,
and (b) who are informed by you of the confidential nature of
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the Information. 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), 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 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, you will notify us
promptly so that we may seek (at our sole cost and expense) 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 does not waive 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 our Representative, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), of that decision and, in that case, and at any
time upon the request of the Company or any of our Representatives,
you will, at your option, 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, or (iii) do
a combination of (i) and (ii). Notwithstanding the foregoing, you
shall not be obligated to destroy or delete:
(a) any documentation that you are under a legal or
regulatory obligation to preserve or retain; or
(b) computer hard disk or other back-up copies of any
such documentation to the extent that to do so
would be detrimental to the operation of the
computer system in question (including that the
deletion cannot take place without deleting
unrelated material on hard disk) provided that
this subparagraph shall only apply to any such
hard disk or back-up copies that are not
generally accessible to employees;
provided, however, that any such documentation that is not required
to be destroyed or deleted will continue to be subject to the terms
of this letter agreement. Any oral Information will continue to be
subject to the terms of this letter agreement.
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5. You acknowledge that except as may be provided in any definitive
agreement with respect to the Transaction (and then subject to such
limitations and restrictions as may be contained therein), neither
we, nor ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or its affiliates, nor our other
Representatives, 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 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 eighteen months from the date of this
letter agreement, neither you nor any of your subsidiaries will,
without the prior written consent of an executive officer of the
Company: (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 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. Notwithstanding the foregoing restrictions, you and
your subsidiaries shall not be prohibited from engaging in:
(a) brokerage, investment, money management and other
similar ordinary course of business activities
with respect to or involving the acquisition of
the securities of the Company or any of its
affiliates (including, without limitation,
transactions (i) involving investment portfolios
of pension and mutual funds, insurance and
investment companies that are affiliates, and
(ii) in the case of ▇▇▇▇▇ ▇▇▇▇▇▇ and its
subsidiaries, in capital market,
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investment banking and other financial businesses
involving securities or assets of the Company or
any of its affiliates); or
(b) any financing transactions that are not directly
related to the Transaction but involve parties
that are seeking to acquire ownership (whether
legal or beneficial ownership) of or control and
direction over substantially all of the assets or
business of any of the businesses of the Company
or any or its affiliates, or securities of the
Company or any of its affiliates;
provided (in either case) the individuals making the decisions with
respect to such activities or transactions (1) do not have access to,
or knowledge of, any Information, and (2) have not been informed that
the Company is or was evaluating the Transaction).
8. You agree that, for a period of one year from the date of this letter
agreement, you will not, directly or indirectly, hire any managerial
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 (a) who contacts you on his or her own initiative without any
direct or indirect solicitation by or encouragement from you, or (b)
who has not been employed by the Company during the preceding six
months, or (c) whom you hire as the result of such person responding
to a general advertisement or a blind solicitation through an
executive search firm not directed specifically at the Company.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and not to 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, including a suit for
monetary damages, you agree to the granting of injunctive relief in
our favor as a
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remedy for any such breach without proof of actual damages. In no
event will you be liable for any indirect, special, or consequential
damages.
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 shall terminate on the earlier of (a) two (2)
years from the date hereof, or (b) the date a definitive purchase
agreement for the Transaction is executed, however, such termination
shall not affect any rights arising out of a breach of this letter
agreement occurring before such termination date.
13. This letter agreement will be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts
between residents of that State and executed in and to be performed
in that State.
14. 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 hereof will be binding upon you or us, unless approved in
writing by each of you and us.
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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,
▇▇▇▇▇▇▇ TRUCK LEASING CORP.
CONFIDENTIALITY AGREEMENT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________________
Title: Vice President -- General Counsel
___________________________________
Accepted and Agreed as of the date
first written above:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇.▇. ▇▇▇▇▇
____________________________________
Name: ▇▇▇▇ ▇.▇. ▇▇▇▇▇
____________________________________
Title: Vice President, Business Development
____________________________________