Exhibit (c) (3)
June 15, 1998
VIA TELECOPIER
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XxXxxxx Aircraft Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxx, XX, 00000
Attention: Mr. X. 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 advice of our counsel.
We hereby acknowledge that we are aware, and our
Representatives will be made aware, that the securities laws of the United
States 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 is
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: /s/ Xxxxxxxx Xxxx
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Xxxxxxxx Xxxx
Managing Director
Agreed and Accepted
XxXxxxx Aircraft Holdings, Inc.
By:
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X. Xxxx XxXxxxx
Chairman and Chief Executive Officer
