Exhibit (e)(3)
XTRA Corporation
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
July 24, 0000
Xxxxxxxxx Xxxxxxxx Inc.
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000
Re: Confidentiality Agreement
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Ladies and Gentlemen:
In connection with your consideration of a possible acquisition of XTRA
Corporation (the "Company"), you may from time to time request certain oral and
written information concerning the Company which is non-public, confidential or
proprietary in nature. In consideration of furnishing you with such information
(the "Evaluation Material"), the Company hereby requests your agreement as
follows:
1. The Evaluation Material will be used solely for the purpose of
evaluating a possible transaction between the Company and you or any subsidiary
of yours (collectively, the "Buyer"), and not in any way directly or indirectly
detrimental to the Company or its subsidiaries, and unless and until Buyer has
completed the purchase of a majority of the shares of common stock of the
Company outstanding on the date of such purchase on a fully-diluted basis
pursuant to a definitive Agreement and Plan of Merger (the "Merger Agreement")
between the Company and Buyer, such information will be kept confidential by
Buyer and its advisors, except that the Evaluation Material or portions thereof
may be disclosed to those of Buyer's directors, officers, employees and
representatives of Buyer's advisors (collectively, "Representatives") who need
to know such information solely for the purpose of evaluating Buyer's possible
acquisition of the Company (it being understood that, before disclosing the
Evaluation Material or any portion thereof to such Representatives, Buyer will
inform them of the confidential nature of the Evaluation Material and obtain
their agreement to be bound by this Agreement and not to disclose such
information to any other person). Buyer agrees to be responsible for any breach
of this Agreement by its Representatives.
In the event that Buyer or any of Buyer's Representatives become legally
compelled (by deposition, interrogatory, request for documents, subpoena, civil
investigative demand or similar process) to disclose any of the Evaluation
Material, Buyer shall provide the Company with prompt prior written notice of
such requirement so that the Company may seek a protective order
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or other appropriate remedy and/or waive compliance with the terms of this
Agreement. In the event that such protective order or other remedy is not
obtained, or that the Company waives compliance with the provisions hereof,
Buyer agrees to furnish only that portion of the Evaluation Material which Buyer
is advised by written opinion of counsel is legally required and to exercise
best efforts to obtain assurance that confidential treatment will be accorded
such Evaluation Material.
2. The term "Evaluation Material" does not include any information that
(i) at the time of disclosure or thereafter is generally available to and known
by the public (other than as a result of its disclosure directly or indirectly
by Buyer or Buyer's Representatives), (ii) was available to Buyer on a non-
confidential basis from a source other than the Company or its advisors,
provided that such source is not and was not bound by a confidentiality
agreement regarding the Company, or (iii) has been independently acquired or
developed by Buyer without violating any of Buyer's obligations under this
Agreement.
3. If a purchase of a majority of the outstanding shares of common stock
of the Company is not consummated by Buyer, or at any other time subsequent to
the termination of the Merger Agreement, Buyer will promptly return to the
Company all copies of the Evaluation Material in Buyer's possession or in the
possession of Buyer's Representatives, and Buyer will promptly destroy all
copies of any analyses, compilations, studies or other documents prepared by or
for Buyer or for Buyer's use which reflect or contain any Evaluation Material.
4. Unless and until a definitive Merger Agreement between the Company and
Buyer has been executed and delivered, without the prior consent of the Company,
Buyer will not, and will direct Buyer's Representatives not to, disclose to any
person (a) the fact that discussions or negotiations are taking place concerning
a possible transaction between the Company and Buyer, (b) that Buyer has
requested or received Evaluation Material from the Company or (c) any of the
terms, conditions or other facts with respect to any such possible transaction,
including the status thereof. The term "person" as used in this Agreement will
be interpreted broadly to include, without limitation, any corporation, company,
partnership, limited liability company, joint venture or individual.
5. In consideration of the Evaluation Material being furnished to Buyer,
Buyer hereby agrees that, for a period of twelve months from the date hereof,
neither Buyer nor any of its affiliates will solicit to employ or hire any of
the current officers or employees of the Company or its subsidiaries with whom
Buyer has had contact or who was specifically identified to Buyer during the
period of Buyer's investigation of the Company, so long as they are employed by
the Company or its subsidiaries, without obtaining the prior written consent of
the Company.
6. Buyer understands and acknowledges that the Company is not making any
representation or warranty, expressed or implied, as to the accuracy or
completeness of the Evaluation Material or of any other information concerning
the Company provided or prepared by or for the Company, and none of the Company,
its subsidiaries, or any of their respective officers,
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directors, employees, stockholders, owners, affiliates or agents, will have any
liability to Buyer or any other person resulting from Buyer's use of the
Evaluation Material or any such other information. Only those representations or
warranties that are made to Buyer in the Merger Agreement when, as and if it is
executed, and subject to such limitations and restrictions as may be specified
in such Merger Agreement, shall have any legal effect.
7. Buyer understands and agrees that no contract or agreement providing
for the sale of the Company shall be deemed to exist between Buyer and the
Company unless and until a definitive Merger Agreement has been executed and
delivered, and Buyer hereby waives, in advance, any claims (including, without
limitation, claims for breach of contract) in connection with the sale of the
Company unless and until Buyer shall have entered into a definitive Merger
Agreement. Buyer also agrees that unless and until a definitive Merger
Agreement between the Company and Buyer with respect to the acquisition of the
Company has been executed and delivered, neither the Company nor any of its
subsidiaries has any legal obligation of any kind whatsoever with respect to any
such transaction by virtue of this Agreement or any other written or oral
expression with respect to such transaction except, in the case of this
Agreement, for the matters specifically agreed to herein. For purposes of this
paragraph, the term "definitive Merger Agreement" does not include an executed
letter of intent or any other preliminary written agreement, nor does it include
any written or oral acceptance of an offer or bid on the part of the Buyer.
Buyer further understands that, unless and until a definitive Merger Agreement
between the Company and the Buyer with respect to the acquisition of the Company
has been executed and delivered, (a) the Company shall be free to conduct the
process for the sale or other disposition of the Company as its in its sole
discretion shall determine (including, without limitation, by negotiating with
any prospective buyer and entering into a definitive Merger Agreement with such
buyer, or by completing a public offering of equity securities of the Company,
in either case without prior notice to Buyer or any other person), (b) any
procedures relating to such sale or disposition may be changed at any time
without notice to Buyer or any other person, (c) the Company may postpone or
abandon its efforts to sell or dispose of the Company at any time without any
advance notice to Buyer and (d) Buyer shall not have any claim whatsoever
against the Company or any of its directors, officers, stockholders, owners,
affiliates, employees or agents, arising out of or relating to the sale or other
disposition of all or any part of the Company (other than those as against the
parties to a definitive Merger Agreement with Buyer in accordance with the terms
thereof). Neither this paragraph nor any other provision of this Agreement may
be waived or amended except by written consent of the Company, as applicable,
which consent shall specifically refer to this paragraph (or such other
provision) and explicitly make such waiver or amendment; provided, however, that
this paragraph shall become null and void if and when a definitive Merger
Agreement between the Company and Buyer with respect to the acquisition of the
Company has been executed and delivered.
8. Buyer agrees to indemnify the Company against any and all losses,
damages, claims or expenses incurred or suffered by the Company as a result of
Buyer's breach of this letter. Buyer understands and acknowledges that any
disclosure or misappropriation of any of the Evaluation Material in violation of
this letter may cause the Company irreparable harm, the
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amount which may be difficult to ascertain. Buyer agrees that the Company shall
be entitled to equitable relief, including injunction, in the event of Buyer's
breach (either actual or threatened) of this Agreement and that Buyer shall not
oppose the granting of such relief. Such right of the Company to equitable
relief is in addition to any other remedies available to the Company.
9. It is further understood and agreed that no failure or delay by the
Company 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.
10. This Agreement is for the benefit of the Company and shall be governed
and construed in accordance with the laws of the State of Delaware. Buyer's
obligations under this Agreement, except the obligations set forth in Sections 3
and 5 hereof, shall expire twenty-four (24) months from the date hereof.
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This Agreement is being delivered to you in duplicate. Kindly execute and
return one copy of this letter, which will constitute our agreement with respect
to the subject matter of this letter.
Very truly yours,
XTRA CORPORATION
By: /s/ A. Xxxxx Xxxxxxxxxx
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A Duly Authorized Signatory
Accepted and Agreed To:
BERKSHIRE HATHAWAY INC.
By: /s/ Xxxx X. Hamburg
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A Duly Authorized Signatory
