Exhibit (e)(2)
[XXXXXX XXXXXX LETTERHEAD]
May 1, 2000
Xxxxxxx X. Xxxxx III
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: Confidentiality Agreement
Dear Mr. Low:
Xxxxxx Xxxxxx & Company, Inc. ("Xxxxxx Xxxxxx") is representing the
Special Committee of the Board of Directors of KLLM Transport Services, Inc.
(the "Company") in connection with the proposed sale of the Company. You may
request confidential information from Xxxxxx Xxxxxx or the Company concerning
the Company, and this information will be used solely in connection with your
evaluation of a possible transaction (the "Transaction") with the Company.
Except as set forth in the penultimate paragraph of this letter, any such
information is referred to herein as "Information." By accepting such
Information, you agree that such Information will be kept strictly confidential
except as permitted herein. You agree to use such Information solely for the
purposes stated herein. Notwithstanding the above, if in the opinion of your
counsel, disclosure of the Information is advisable in order to comply with law,
such Information may be so disclosed.
You agree to provide Information only to your agents or professional
advisors (such as attorneys, accountants and bankers), your "affiliates" (as
defined in the Securities Act of 1933, as amended), potential financing sources
or co-investors 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 agree upon the request of either the Company or Xxxxxx Xxxxxx to
return to Xxxxxx Xxxxxx or the Company all Information sent to you by Xxxxxx
Xxxxxx or the Company at your request without retaining any copies or extracts,
and that you will destroy all memoranda, notes or other documents prepared by
you or on your behalf based upon such Information; provided, however, that your
legal counsel may retain one copy of such Information solely for purposes of
evidencing such Information in the event of litigation or threatened litigation
relating to such Information.
You agree that the Company may be irreparably injured by a breach of
this agreement by you or your representatives, that monetary remedies may be
inadequate to protect the Company against any actual or threatened breach of
this agreement by you or by your representatives, and that the Company 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 the Information shall not
apply to any Information which (i) becomes generally available to the public
other than as a result of a breach of any confidentiality obligation, (ii) was
available to you on a non-confidential basis prior to disclosure to you by the
Company or Xxxxxx Xxxxxx, (iii) is independently developed by you, (iv) 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)
has been expressly approved in writing by the Company for your use or
disclosure. Nothing contained in this agreement shall be construed to limit
your use or disclosure of Information in connection with fulfilling your
position as Chairman, President and Chief Executive Officer of the Company.
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.
By: /s/ Xxxx X. Xxxxxxx
--------------------
Title: Managing Director
Accepted and agreed to as of the date written below:
By: /s/ Xxxxxxx X. Xxxxx, III
-------------------------
Xxxxxxx X. Xxxxx, III
Date: 5/1/00
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