June 15, 1998
VIA TELECOPIER
XxXxxxx Aircraft Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxx, XX 00000
Attention: Mr. R. Xxxx XxXxxxx
Chairman and Chief Executive Officer
Gentlemen:
XxXxxxx Aircraft Holdings, Inc. ("you" or the "Company") has agreed to
provide certain information concerning the Company to DLJ Merchant Banking II,
Inc. ("we" or "DLJ") so that we may consider an investment in the Company (a
"Transaction").
We agree to treat confidentially all oral and written information
concerning the Company that we may receive from the Company or any of its
affiliates or agents (the "Evaluation Material") in connection with our
consideration of a Transaction. We also agree that prior to giving access to the
Evaluation Material to any of our employees, officers, directors, agents,
advisors or representatives (the "Representatives") we shall inform such
Representatives that they are bound by the terms set forth in this letter.
Evaluation Material shall include any information you provide to us in the
course of our consideration of a Transaction, whether in oral or written form.
Any reports, analyses, or notes we produce that are based on, reflect or contain
Evaluation Material ("Notes") shall also be held in confidence. We shall not be
required to maintain the confidentiality of Evaluation Material if it (i) was or
becomes generally available to the public other than through disclosure by us in
violation of this agreement; (ii) was available to us on a non-confidential
basis prior to your disclosure to us; or (iii) becomes available to us from a
source not known to us to have a duty of confidentiality with regard to the
information.
We agree to use Evaluation Material only to help us analyze and evaluate a
Transaction, and shall permit our Representatives access to Evaluation Material
only to the extent necessary to allow them to assist us in that analysis or
evaluation.
If we or our Representatives are requested to disclose any Evaluation
Material or Notes in connection with any legal or administrative proceeding or
investigation, to the extent practicable, we will notify you of the request so
that you may seek a protective order or other remedy or waive our compliance
with this agreement We will cooperate with you on a reasonable basis in your
efforts to obtain a protective order or other remedy, but we may disclose such
of the Evaluation Material or Notes we are required to disclose without
liability to you upon the advise of our counsel.
We hereby acknowledge that we are aware, and our Representatives will be
made aware, that the securities laws of the United State prohibit any person who
has material, non-public information concerning the Company or a possible
Transaction involving the Company from purchasing or selling securities in
reliance upon such information or from communicating such information to any
other person or entity under circumstances in which it is reasonably foreseeable
that such person or entity is likely to purchase or sell such securities in
reliance upon such information.
We agree that, for a period of two years from the date of this agreement,
(which obligation shall survive any termination of this letter agreement) unless
such shall have been specifically invited in writing by the Board of Directors
of the Company, we will not, in any manner, directly or indirectly, (a) effect
or seek, offer or propose (whether publicly or otherwise) to effect, or cause or
participate in or in any way assist any other person to effect or seek, offer or
propose (whether publicly or otherwise) to effect or participate in, (i) any
acquisition of any securities (or beneficial ownership thereof) or assets of the
Company or any of its subsidiaries; (ii) any tender or exchange offer or merger
or other business combination involving the Company or any of its subsidiaries;
(iii) any recapitalization, restructuring, liquidation, dissolution or other
extraordinary transaction with respect to the Company or any of its
subsidiaries; or (iv) any "solicitation" of "proxies" (as such terms are used in
the proxy rules of the Securities and Exchange Commission) or consents to vote
any voting securities of the Company, (b) form, join or in any way participate
in a "group" (as defined under the Securities Exchange Act of 1934, as amended),
(c) otherwise act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company, (d)
take any action which might force the Company to make a public announcement
regarding any of the types of matters set forth in (a) above, or (e) enter into
any discussions or arrangements with any third party with respect to any of the
foregoing. We also agree during any such period not to request the Company (or
its directors, officers, employees or agents), directly or indirectly, to amend
or waive any provision of this paragraph (including this sentence).
You may choose at any time to terminate our further access to Evaluation
Material, and, upon your request, we will destroy or return all Evaluation
Material previously delivered to us and all copies, summaries and extracts of
such Evaluation material and will destroy all Notes.
Notwithstanding the foregoing, it is understood and agreed that certain of
our affiliates, including without limitation, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ("DLJSC"), are full service securities firms and as such,
may, from time to time effect transactions for their own accounts or the account
of their customers, hold positions in securities of the Company (information on
which may be included in the Evaluation Material in each case in the ordinary
course of their respective businesses as broker-dealers, investment advisers,
block positioners, or investment bankers so long as (i) they have established a
"Chinese Wall" between individuals working on the Transaction and those
individuals involved in effectuating such dealings or transactions, and (ii) and
such purchases, sales or dealings are made only in accordance with such "Chinese
Wall" policies and procedures and in accordance with applicable law. Nothing
contained herein shall be deemed to limit or restrict DLJSC or any such
affiliates in the conduct of any such activities.
Neither you nor we shall be under any legal obligation with respect to a
Transaction unless and until a definitive agreement between us in executed and
delivered.
We acknowledge that you are free to conduct the process for a Transaction
as you may determine in your sole discretion. You may change the procedures
established for a Transaction at any time without notifying us and you may
accept or reject any proposal relating to a Transaction in your sole discretion.
We acknowledge that money damages may not be sufficient remedy for any
breach of this agreement and agree that you shall be entitled to seek specific
performance and injunctive or other equitable relief for any such breach.
This agreement shall be governed by the laws of the State of New York and
may be amended or waived only in writing signed by both of us and shall
terminate one year from the date hereof.
Please indicate your agreement with the foregoing by signing below and
returning one copy of this Agreement.
Very truly yours
DLJ MERCHANT BANKING II, INC.
By: ____________________________
Xxxxxxxx Xxxx
Managing Director
Agreed and Accepted
XxXxxxx Aircraft Holdings, Inc.
By: ______________________________________
R. Xxxx XxXxxxx
Chairman and Chief Executive Officer
