Exhibit (c)(2)
[Insert Confidentiality Agreement]
Exhibit (c)(2)
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Danzas Holding Ltd. July 12, 1999
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CONFIDENTIALITY AGREEMENT
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Dear Sirs:
In connection with your possible interest in the acquisition (the "Transaction")
of the business of Air Express International Corp., and its subsidiaries (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.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep this 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.
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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 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, 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 does not waive compliance with the terms of this latter
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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 in 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 whom 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 three 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
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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 agents; (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; or (v)
request the Company or any of our Representatives, directly or
indirectly, to amend or waive any provisions of this paragraph. 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 three 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 this 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 of 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 latter
agreement, any other written or oral expression with respect to the
Transaction or otherwise.
10. You acknowledge that remedies of 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 for 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 my 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 the State and executed in and to be performed in that State.
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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 hereof 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,
DANZAS Holding Ltd.
By: /s/ Per Utnegaard
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Name Per Utnegaard
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Title Senior Vice President
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Accepted and Agreed as of the date
first written above:
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AIR EXPRESS INTERNATIONAL CORP.
By:
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Name:
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Title:
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