1
EXHIBIT (c)(21)
CONFIDENTIALITY AGREEMENT
2
EXHIBIT (c)(21)
September 29, 1999
Delta Air Lines, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxx Xxxxxxx International Airport
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Dear Sir:
In order to allow you to evaluate a possible transaction,
which for the avoidance of doubt does not include our ongoing Delta Connection
relationship or any discussions relating to the renewal or renegotiation thereof
(the "Proposed Transaction"), with Comair Holdings, Inc. (the "Company"), we
have and will deliver to you, upon your execution and delivery to us of this
letter agreement, such information about the properties and operations of the
Company that you may reasonably request for the purpose of such evaluation
(subject to any legally binding obligations of the Company to keep such
information confidential). All written information about the Company furnished
by us or our Representatives (as defined below) solely in connection with the
Proposed Transaction and regardless of the manner in which it is furnished, is
referred to in this letter agreement as "Proprietary Information".
Proprietary Information also includes all notes, analyses,
compilations, studies, interpretations or other documents prepared by you or
your Representatives which contain, reflect or are based upon, in whole or in
part, the information furnished to you or your Representatives pursuant hereto.
Proprietary Information does not include, however, information which (a) is or
becomes generally available to the public other than as a result of a disclosure
by you or your Representatives in violation of this Agreement, (b) was available
to you on a nonconfidential basis prior to its disclosure by us or our
Representatives or (c) becomes available to you on a nonconfidential basis from
a person other than us or our Representatives who is not otherwise known to you
to be bound by a confidentiality agreement with us or any Representative of
ours, or is otherwise not known to you to be under an obligation to us or any
Representative of ours not to transmit the information to you. As used in this
letter agreement, the term "Representative" means, as to any person, its
directors, officers, employees, agents, advisors (including, without limitation,
financial advisors), counsel, accountants and financing sources (including their
advisors and agents). As used in this letter agreement, the term "person" shall
be broadly interpreted to include, without limitation, any corporation, company,
trust, partnership, other entity or individual.
3
2
Subject to the immediately succeeding paragraph, unless
otherwise agreed to in writing by us, you agree (a) except as required by law,
to keep all Proprietary Information confidential and not to disclose or reveal
any Proprietary Information to any person other than your Representatives who
are actively and directly participating in your evaluation of the Proposed
Transaction or who otherwise need to know the Proprietary Information for the
purpose of evaluating the Proposed Transaction and to cause those persons to
observe the terms of this letter agreement, (b) not to use Proprietary
Information for any purpose other than in connection with your evaluation of the
Proposed Transaction or in connection with the consummation of the Proposed
Transaction in a manner that we have agreed and (c) not to disclose to any
person (other than those of your Representatives who are actively and directly
participating in your evaluation of the Proposed Transaction or who otherwise
need to know for the purpose of evaluating the Proposed Transaction and, in the
case of your Representatives, whom you will cause to observe the terms of this
letter agreement) any information about the Proposed Transaction, or the terms
or conditions or any other facts relating thereto, including, without
limitation, the fact that discussions are taking place with respect thereto or
the status thereof, or the fact that Proprietary Information has been made
available to you or your Representatives. You will be responsible for any breach
of the terms of this letter agreement by you or your Representatives.
In the event that you or any of your Representatives are
requested pursuant to, or required by, applicable law or regulation (including,
without limitation, any rule, regulation or policy statement of any organized
securities exchange, market or automated quotation system on which any of your
securities are listed or quoted) or by legal process to make any disclosure
prohibited by the terms of the preceding paragraph, you agree that you will
provide us with prompt notice of such request or requirement in order to enable
us to seek an appropriate protective order or other remedy, to consult with you
with respect to our taking steps to resist or narrow the scope of such request
or legal process, or to waive compliance, in whole or in part, with the terms of
this letter agreement. In the event that such protective order or other remedy
is not obtained, or we waive compliance, in whole or in part, with the terms of
this letter agreement, you or your Representative will use reasonable efforts to
disclose only that portion of the Proprietary Information which is legally
required, in the reasonable opinion of your counsel, to be disclosed and to
ensure that all Proprietary Information that is so disclosed will be accorded
confidential treatment. No waiver by the Company of the terms of this letter
agreement will be effective unless it is contained in a written instrument
executed by an authorized officer of the Company.
In consideration of our furnishing the Proprietary Information
as provided for in the first paragraph to you, you also agree that for a period
(the "Restricted Period") from the date of this letter agreement until the first
anniversary of the date of this letter agreement, neither you
4
3
nor any corporation or any entity controlled by you (collectively, the
"Purchaser Group") will, without the prior written consent of the Company or its
Board of Directors:
(a) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or
direct or indirect rights to acquire any voting securities of the
Company or any current or former subsidiary thereof, or any
subsidiary or any substantial portion of the assets of the
Company (except by way of dividends, stock splits or other
distributions made available to holders of the Company's voting
securities generally) if, in the case of an acquisition of common
stock, the effect of such acquisition would be to increase the
aggregate ownership of the shares of the Company's common stock
then owned by all members of the Purchaser Group to greater than
25% of all shares of common stock then outstanding; provided,
however, that it shall not be a violation of the foregoing
limitation if the number of shares of common stock shall have
decreased (by reason of repurchases of shares or other action
taken by the Company) and the Purchaser Group shall thereby
become the beneficial owner of more than 25% of the then
outstanding shares of common stock;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are used in
the rules of the Securities and Exchange Commission), or seek to
advise or influence any person or entity with respect to the
voting of any voting securities of the Company or any current or
former subsidiary;
(c) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any
extraordinary transaction involving the Company or any current or
former subsidiary or any of its securities (other than securities
owned by you or another member of the Purchaser Group) or any
substantial portion of its assets;
(d) form, join or in any way participate in a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), in connection with any of the
foregoing; or
(e) request the Company or any current or former subsidiary or any of
our Representatives, directly or indirectly, to amend or waive
any provision of this paragraph.
The foregoing limitations set forth in clauses (a) to (e) above shall terminate
and be of no further force and effect if any of the following events shall
occur: (A) a tender or exchange offer is made or publicly proposed to be made by
any person, entity or group (other than you, any other
5
4
member of the Purchaser Group or any other person, entity or group with whom you
or any other member of the Purchaser Group has any agreement or understanding or
has communicated, either directly or indirectly, for the purpose of encouraging
such offer) for the voting securities of the Company which, if successful, would
result in such person, entity or group beneficially owning more than 20% of the
voting securities of the Company then outstanding, (B) any person, entity or
group (other than you or any other member of the Purchaser Group) shall have
acquired or publicly proposed to acquire beneficial ownership of more than 20%
of the voting securities of the Company or any of its current or former
subsidiaries then outstanding or (C) any person, entity or group (other than you
or any other member of the Purchaser Group) shall have entered into a definitive
agreement or agreement in principle with the Company or any of its current or
former subsidiaries with respect to the acquisition of any substantial portion
of the assets of the Company or any of its current or former subsidiaries or of
the outstanding shares of the Company's common stock by means of a merger,
consolidation or other business combination involving the Company.
You acknowledge that all Proprietary Information disclosed to
you is, and shall remain, the property of the Company. If you determine that you
do not wish to proceed with the Proposed Transaction, you will promptly advise
us of that decision. In that case, or in the event that we, in our sole
discretion, so request whether because we determine not to proceed for any
reason or otherwise or the Proposed Transaction is not consummated by you, you
will, upon our written request, promptly deliver to us all Proprietary
Information furnished by us or our Representatives, and, at your election,
return or destroy (provided that any such destruction shall be certified by a
duly authorized Representative of yours) all copies, reproductions, summaries,
analyses or extracts thereof or based thereon in your possession or in the
possession of any Representative of yours.
Subject to the terms and conditions of a final agreement
regarding the Proposed Transaction and without prejudice thereto, you
acknowledge that none of the Company or our other Representatives and none of
the respective officers, directors, employees, agents or controlling persons of
any such Representatives makes any express or implied representation or warranty
as to the completeness of the Proprietary Information. You also agree that you
are not entitled to rely on the completeness of any Proprietary Information and
that you shall be entitled to rely solely on such representations and warranties
regarding the completeness of the Proprietary Information, if any, as may be
made to you in any final agreement relating to the Proposed Transaction, subject
to the terms and conditions of such agreement.
You agree that, without our prior written consent, you will
not for a period of eighteen months from the date hereof directly or indirectly
solicit for employment any executive officer of the Company or any of its
subsidiaries or any vice president of the Company or any of its subsidiaries who
is in charge of a principal business unit, division or function; provided that a
general solicitation not specifically directed at such employees shall not be
considered a violation
6
5
of such prohibition.
Each party hereto agrees that until a final agreement
regarding the Proposed Transaction has been executed by the parties hereto, each
party hereto is not under any legal obligation and shall have no liability to
the other party of any nature whatsoever with respect to the Proposed
Transaction by virtue of this letter agreement or otherwise (other than with
respect to the confidentiality and other matters set forth herein).
Without prejudice to the rights and remedies otherwise
available to us, you agree that the Company shall be entitled to equitable
relief by way of injunction or otherwise if you or any of your Representatives
breach or threaten to breach any of the provisions of this letter agreement.
It is further understood and agreed that no failure or delay
by us in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
This letter agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Unless otherwise expressly stated herein with respect to any
particular obligation, your obligations under this letter agreement will expire
two years from the date hereof.
Any assignment of this letter agreement by you without our
prior written consent shall be void and of no legal force or effect.
This letter agreement contains the entire agreement between
you and us concerning confidentiality of the Proprietary Information and the
contents of this letter agreement, and no modification of this letter agreement
or waiver of the terms and conditions hereof shall be binding upon you or us,
unless approved in writing by each of you and us.
7
6
Please confirm your agreement with the foregoing by signing
and returning to the undersigned the duplicate copy of this letter enclosed
herewith.
COMAIR HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior VP Finance and CFO
Accepted and Agreed as of
the date first written above:
DELTA AIR LINES, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Executive VP and CFO
