Exhibit 99(c)(7)
[Confidentiality Agreement]
June 12, 1998
AMR Corporation
0000 Xxxx Xxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxx 00000
Attention: Senior Vice President and General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated transaction with
Reno Air, Inc. (the "Company"), you have requested information regarding the
Company.
1. As a condition to your being furnished with such information, you agree
(and agree to cause your affiliates and associates) to treat any
information concerning the Company which is furnished to you by or on
behalf of the Company, from and after June 11, 1998 and regardless of the
manner in which it is or was furnished, together with analyses,
compilations, studies or other documents or records prepared by you or any
of your directors, officers, employees, agents or advisors (including,
without limitation, attorneys, accountants, consultants, bankers, financial
advisors and any representatives of your advisors) (collectively,
"Representatives") to the extent that such analyses, compilations, studies,
documents or records contain or otherwise reflect or are generated from
such information (hereinafter collectively referred to as the "Evaluation
Material"), in accordance with provisions of this agreement. The term
"Evaluation Material" does not include information which (i) was or becomes
generally available to the public other than as a result of a disclosure by
you or your Representatives, (ii) was or becomes available to you on a
non-confidential basis from a source other than the Company or its advisors
provided that such source is not known to you to be bound by a
confidentiality agreement with the Company, or otherwise prohibited from
transmitting the information to you by a contractual, legal or fiduciary
obligation, or (iii) was within your possession prior to having been
furnished to you by or on behalf of the Company, provided that the source
of such information was not bound by a confidentiality agreement with the
Company or otherwise prohibited from transmitting the information to you by
a contractual, legal, or fiduciary obligation.
2. You hereby agree that the Evaluation Material will be used solely for the
purpose of evaluating a possible negotiated transaction between the Company
and you, and that such information will be kept confidential by you and
your Representatives;
provided, however, that (a) any of such information may be disclosed to
your Representatives who need to know such information for the purpose of
evaluating any such possible transaction between the Company and you (it
being understood that such Representatives shall have been advised of this
agreement and shall have agreed to be bound by the provisions hereof), and
(b) any disclosure of such information may be made to which the Company
consents in writing. In any event, you shall be responsible for any breach
of this agreement by any of your Representatives and you agree, at your
sole expense, to take all reasonable measures (including but not limited to
court proceedings) to restrain your Representatives from prohibited or
unauthorized disclosure or use of the Evaluation Material.
3. In addition, both you and the Company agree that, without the prior written
consent of the other, each will not, and will direct its Representatives
not to, disclose to any person (i) that the Evaluation Material has been
made available to you or your Representatives, (ii) that discussions or
negotiations are taking place concerning a possible transaction between the
Company and you or (iii) any terms, conditions or other facts with respect
to any such possible transaction, including the status thereof. Both you
and the Company agree however, that, if in the reasonable opinion of
counsel for either party, disclosure of the type described in sub-clauses
(i), (ii), or (iii) of the immediately preceding sentence is required by
applicable law, prior to making any such disclosure, the party required to
so disclose will notify the other party in writing as soon as reasonably
practicable. Such notice will set forth with the proposed text of the
disclosure, the date and time when it is expected that the disclosure will
be made, and the legal requirement and rationale for the disclosure.
4. In the event that you are requested or required (by interrogatories,
requests for information or documents, subpoena, civil investigative demand
or similar processes) to disclose any Evaluation Material, it is agreed
that you will provide the Company with prompt notice of any such request or
requirement (written or practical) so that the Company may seek an
appropriate protective order or waive your compliance with the provisions
of this agreement. If, failing the entry of a protective order or the
receipt of a waiver hereunder, you are, in the opinion of your counsel,
compelled to disclose Evaluation Material, you may disclose that portion of
the Evaluation Material, which your counsel advises that you are compelled
to disclose and you will exercise reasonable efforts to obtain assurance
that confidential treatment will be accorded to that portion of the
Evaluation Material which is being disclosed. In any event, you will not
oppose any action by the
Company to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Evaluation
Material.
5. It is understood that Xxxxxx X. Rossum- the Company's General Counsel - or
his designee will arrange for appropriate contacts for due diligence
purposes. All (i) communications regarding this transaction, (ii) requests
for additional information, and (iii) discussions or questions regarding
the Company's business or operations, will be confidentially submitted or
directed to Mr. Rossum or to such other person or entity as he may
designate in writing for such purpose during the period in which there are
discussions conducted pursuant hereto.
6. You understand and acknowledge that any and all information contained in
the Evaluation Material is being provided without any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material, on the part of the Company. You agree that neither the
Company nor any of its representatives shall have any liability to you or
any of your Representatives with respect thereto. It is understood that the
scope of any representations and warranties to be given by the Company will
be negotiated along with other terms and conditions in arriving at a
mutually acceptable form of definitive agreement should discussions between
you and the Company progress to such a point.
7. Each of us hereby acknowledges that it is aware and that it will advise its
Representatives that the federal and state securities laws prohibit any
person who has material, non-public information about a company from
purchasing or selling securities of such a company or from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such
securities.
8. All Evaluation Material disclosed by the Company shall be and shall remain
the property of the Company. In the event that the parties do not proceed
with the transaction that is the subject of this letter within a reasonable
time or within five days after being so requested by the Company, you shall
return or destroy all documents constituting Evaluation Material furnished
to you by the Company. Except to the extent a party is advised in writing
by counsel that any such destruction is prohibited by law, you will also
destroy all written material, memoranda, notes, copies, excerpts and other
writings or recordings whatsoever prepared by you or your Representatives
based upon, containing or otherwise reflecting any Evaluation Material. Any
destruction of materials shall be verified by you in writing and signed by
one of your officers. Any Evaluation Material that is not
returned or destroyed, including without limitation, any oral Evaluation
Material shall remain subject to the confidentiality obligations set forth
in this agreement.
9. You agree that unless and until a definitive agreement regarding a
transaction between the Company and you has been executed, neither the
Company nor you will be under any legal obligation of any kind whatsoever
with respect to such a transaction by virtue of this agreement except for
the matters specifically agreed to herein. You further acknowledge and
agree that the Company and you reserve the right, in its sole discretion,
to reject any and all proposals made by the other or any of its
Representatives with regard to a transaction between the Company and you,
and to terminate discussions and negotiations at any time.
10. It is understood and agreed that damages would not be a sufficient remedy
for any breach of this agreement and that the Company and you shall be
entitled to specific performance and injunctive or other equitable relief
as a remedy for any such breach by the other. Such remedy shall not be
deemed to be the exclusive remedy for breach of this agreement but shall be
in addition to all other remedies available at law or equity.
11. In the event of litigation relating to this agreement, the unsuccessful
party determined by a court of competent jurisdiction in a final,
non-appealable order shall be liable and pay to the prevailing party the
reasonable legal fees such prevailing party has incurred in connection with
such litigation, including any appeal therefrom.
12. This agreement is for the benefit of each of the parties and its successors
and shall be governed and construed in accordance with the laws of the
State of New York, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof. All obligations under
this agreement shall expire one year from the date hereof, except as
otherwise explicitly stated above. In case, any provision of this agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of the agreement shall not in
any way be affected or impaired thereby.
13. This agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which shall constitute one
and the same agreement. Faxed executed counterparts will be enforceable.
Please confirm that the foregoing is in accordance with your understanding
of our agreement by signing and returning to a copy of this letter to the
Company's General Counsel.
Very truly yours,
Reno Air, Inc.
By:/s/ Xxxxxx X. Rossum
Its: Senior Vice President, General Counsel, and Corporate Secretary
Confirmed and Agreed:
AMR Corporation
By:/s/ Xxxxxxx X. XxxXxxx
Its: Corporate Secretary
