EXHIBIT (e)(4)
March 7, 2001
Xxx X. Xxxxx
President & CEO
Overnite Transportation Company
0000 Xxxxxx Xxx.
X.X. Xxx 0000
Xxxxxxxx, XX 00000
CONFIDENTIALITY AGREEMENT
Dear Xx. Xxxxx:
Xxxxxx Xxxxxx & Company, Inc. ("Xxxxxx Xxxxxx") is representing Motor Cargo
Industries, Inc. (the "Company") in connection with the Company's consideration
of various strategic alternatives. You have requested information concerning the
Company, and this information will be used solely in connection with your
evaluation of a possible transaction (the "Transaction") with the Company.
Xxxxxx Xxxxxx is furnishing you with certain information, and Xxxxxx Xxxxxx or
the Company may provide additional information to you in the future. Except as
set forth in the penultimate paragraph of this letter, any such information
which is non-public, confidential or proprietary in nature is referred to herein
as "Information." By accepting such Information, you agree that such Information
will be kept strictly confidential. In no event shall you use such Information
to the detriment of the Company. You agree to use such Information solely for
the purposes stated in the prior paragraph.
You agree to provide Information only to officers, employees or agents of, or
professional advisors (such as attorneys, accountants and bankers) to your
company who have a need to know such Information for the exclusive purpose of
evaluating the Transaction, all of whom shall be informed by you of this
agreement and shall agree to be bound by the terms of this agreement. You shall
be responsible for any unauthorized use or disclosure of Information by any such
third parties. You and the Company each further agrees that without the prior
written consent of the other party it will not disclose to any person the fact
that you have received confidential information on the Company or that
discussions or negotiations are taking place between you and the Company or the
status thereof, unless, in the opinion of such disclosing party's counsel, such
disclosure is required by law (in which case the disclosing party shall advise
and consult with the other party and its counsel prior to any disclosure
proposed to be made concerning the reasons for, and nature of, the proposed
disclosure).
You agree that, except as otherwise provided in this agreement for a period of
18 months from the date of this agreement, unless such shall have been
specifically invited by the Company,
March 7, 2001
Page 2
neither you nor any of affiliates will 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 material 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) with respect to any of the types of matters set forth in (a)
above, (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)
make or take any action which forces 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. You 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).
Notwithstanding the foregoing, if (a) the Company considers accepting any offer
regarding any of the types of transactions described in clauses (a)(i), (ii) and
(iii) of the preceding sentence (a "Company Transaction") or entering into any
agreement regarding a Company Transaction and prior to accepting such offer or
entering into such agreement, (b) an inquiry, proposal or offer is publicly
disclosed by a third party regarding a Company Transaction, or (c) a third party
acquires 10% or more of the voting securities of the Company, the prohibitions
set forth in this paragraph shall cease to apply to you and you shall be
released from your obligations under this Agreement to the extent necessary to
comply with any requirements of law in making an offer or proposal. The Company
shall immediately notify you of the occurrence of any of the events in clauses
(a) - (c) of the preceding sentence and shall provide you with an opportunity to
participate on equal basis in making an offer. Further, and notwithstanding the
foregoing, nothing shall prohibit you from making a proposal to Xxxxxx and
Xxxxxxxx Xxxx or their representatives regarding a Company Transaction so long
as such proposal would not require public disclosure.
You agree not to initiate or maintain contact with any officer, director,
employee, shareholder or sales representative of the Company with respect to the
matters discussed in this agreement other than Messrs. Xxxxxx and Xxxxxxxx Xxxx
or their representatives, except with the prior permission of Xxxxxx Xxxxxx or
either Xxxxxx and Xxxxxxxx Xxxx or their representatives.
In consideration of the Information being furnished to you, you agree that for a
period of 18 months from the date of this letter, neither you nor any of your
affiliates will solicit to employ or engage any of the Company's officers,
employees or independent sales representatives with whom you had contact or who
became known to you in connection with your consideration of a Transaction so
long as they are employed or engaged by the Company, without obtaining the
March 7, 2001
Page 3
Company's prior written consent; provided, however, that the foregoing shall not
prohibit you from soliciting and engaging any person by means of general
advertising, or who contacts you on his or her own initiative without any
solicitation by you, nor shall the foregoing prohibit your employees or the
employees of your affiliates who have no actual knowledge of this letter
agreement from soliciting and engaging any person.
You agree upon the request of either the Company or Xxxxxx Xxxxxx to return to
Xxxxxx Xxxxxx all Information sent to you without retaining any copies or
extracts, and that you will destroy all portions of memoranda, notes or other
documents prepared by you or on your behalf based upon the information;
provided, however, that your legal department may retain one copy of the
Information solely for purposes of evidencing the Information in the event of
litigation or threatened litigation relating to the Information.
You and the Company each agrees that the other party may be irreparably injured
by a breach of this agreement by such party or its representatives, that
monetary remedies may be inadequate to protect each party against any actual or
threatened breach of this agreement by the other party or by its
representatives, and that each party shall be entitled to specific performance
or other equitable relief as a remedy for any breach. Such remedy shall not be
deemed to be the exclusive remedy for a breach of this agreement but shall be in
addition to all other remedies available at law or equity. The prevailing party
shall pay the other party's costs and expenses in any action to enforce the
terms of this letter.
This letter shall be governed by the laws of the State in which the Company is
headquartered. This Agreement may be executed and delivered in counterpart
copies and by facsimile.
The foregoing restrictions with respect to information furnished to you shall
not apply to any information which (i) is or becomes generally available to the
public other than as a result of breach of any confidentiality obligation, (ii)
was or becomes available to you on a non-confidential basis prior to disclosure
to you by the Company, Xxxxxx Xxxxxx or their representatives, (iii) is
independently developed by you, (iv) was or becomes lawfully available to you on
a non-confidential basis from a source other than the Company or Xxxxxx Xxxxxx,
provided that such source is not known by you to be subject to a confidentiality
obligation in favor of us or the Company, or (v) that the Company has expressly
approved in writing your use or disclosure of such information.
If the foregoing is acceptable, please execute this Agreement in the space
provided below and return one copy of this letter to Xxxxxx Xxxxxx.
Sincerely,
XXXXXX XXXXXX & COMPANY, INC.
March 7, 2001
Page 4
By: /s/ Xxxx X. Xxxxxxx Xx.
-----------------------------------------------------
Title: Managing Director
Accepted and agreed to as of the date written below:
Company: Overnite Transportation Co.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------------
Title: SVP & CEO
Date: 3/7/01
