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EXHIBIT (d)(3)
-- CONFIDENTIAL --
Kurt Salmon Associates Capital Advisors
1355 Peachtree Street, N.W.
Suite 900
Atlanta, GA 30309
404-253-0373 FAX
Gentlemen:
In connection with our consideration of a possible negotiated transaction with
your client (the "Company"), which has been described as a manufacturer and
marketer of Men's and Boys' apparel, we have been or will be furnished certain
information concerning the business, financial condition, operations, assets
and liabilities of the Company from officers, directors, employees,
representatives, advisors and/or agents of the Company, including Kurt Salmon
Associates Capital Advisors ("KSA CA" or the "Advisor") (collectively, and
together with the Company, the "Disclosing Parties"). In consideration of
furnishing us with such information to assist us in such regard, we hereby
agree, for us and any controlled subsidiary or affiliate, to the following:
(1) Use of Evaluation Material. The Evaluation Material (as defined below)
will be used solely for the purpose of evaluating a possible negotiated
transaction between the Company and us and not in a manner detrimental
to the Company. Unless and until we and the Company have completed such
a transaction pursuant to a definitive acquisition agreement (the
"Definitive Acquisition Agreement"), all the Evaluation Material will
be kept confidential by us and our Representatives (as defined below)
and will not be disclosed by us or any of our Representatives to any
person; provided, however, that we may disclose the Evaluation
Material or portions thereof to those of our directors, officers,
employees, agents or advisors (the persons to whom such disclosure is
permissible being collectively called "Representatives") who need to
know such information for the sole purpose of evaluating a possible
negotiated transaction between the Company and us and who, prior to the
receipt of Evaluation Material, agree to keep such information
confidential and agree to be bound by the terms hereof to the same
extent as if they were parties hereto. We agree to be responsible for
compliance with this agreement by any of the Representatives, and we
agree, at our sole expense, to take all reasonable measures (including
but not limited to court proceedings) to restrain our Representatives
from prohibited or unauthorized disclosure or use of the Evaluation
Material.
(2) Legally Required Disclosures. In the event that we or any of the
Representatives are required in legal proceedings or similar process to
disclose any of the Evaluation Material, we shall provide the Company
with prompt prior written notice of any such requirement so that the
Company may seek a protective order or other appropriate remedy or, if
appropriate, waive compliance with the terms of this agreement. In the
absence of a protective order or other remedy or the receipt of a
waiver by the Company, we or our Representatives may, without liability
hereunder, disclose to such tribunal only that portion of the
Evaluation Material which our counsel advises us in writing is legally
required to be disclosed; provided that we or our
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Representatives have used reasonable efforts to obtain, to the extent
possible, reliable assurances that confidential treatment will be accorded
to such information.
(3) Definition of Evaluation Material. The term "Evaluation Material" as used
in this agreement shall mean all information and documents concerning the
Company (whether prepared by the Company, its advisors or otherwise and
irrespective of the form of data or communication) which any Disclosing
Party now or in the future furnishes or otherwise discloses to us or any of
the Representatives, together with all notes, analyses, compilations,
studies, interpretations or other documents, records or data, or any copies
thereof, prepared by us or any of the Representatives which contain,
reflect or are otherwise based upon, in whole or in part, such information
and documents. The term "Evaluation Material" does not include any
information which at the time of disclosure or thereafter is generally
available to and known by the public (other than by reason of a breach of
this agreement), was within our possession prior to its being furnished to
us by or on behalf of the Company, or has been independently acquired or
developed by us without violation of any obligation under this agreement
and is not subject to any confidentiality obligation.
(4) Return or Destruction of Material. If we decide that we do not wish to
proceed with a transaction with the Company, we will promptly inform the
Company of that decision and deliver to the Company or destroy all
Evaluation Material within ten (10) business days. Moreover, if at any
time the Company advises us for any reason that it does not wish to
continue discussions with respect to a proposed transaction between us and
the Company, we will deliver to the Company or destroy, within ten (10)
business days, all Evaluation Material. Within such ten (10) business day
period, we will provide to the Company a certificate that we have
satisfied our obligations under this paragraph (4).
(5) Nondisclosure of Possible Transaction. Without the prior written consent
of the Company, we will not, and will direct and cause the Representatives
not to, at any time disclose the fact that the Evaluation Material has
been made available to us, that the Company or all or a major portion of
its assets or business may be sold, that any investigations, discussions
or negotiations are taking place concerning a possible transaction
involving the Company or any of the terms, conditions, status of
discussions or other facts with respect to any such possible transaction.
Without the prior written consent of the Company we will not, directly or
indirectly, enter into any agreement, arrangement or understanding, or any
discussions that might lead to such agreement, arrangement or
understanding, with any person regarding a possible transaction involving
the Company.
(6) Standstill Agreement. From and after the date of this letter and until the
earlier of (i) the closing of the Definitive Acquisition Agreement; or
(ii) one year after we return or destroy the Evaluation Material as
provided in paragraph (4), we and our affiliates (as such term is defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) will not (and we and they will not assist, provide or
arrange financing to or for others or encourage others to), directly or
indirectly, acting alone or as part of a group, without the Company's
prior written consent:
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(a) acquire, directly or indirectly, beneficial ownership of any
of the Company's outstanding securities, assets or business or
enter unto any agreements, rights, options or warrants to
acquire, directly or indirectly, beneficial ownership of any
of the Company's outstanding securities, assets or business;
(b) seek or propose to influence or control (including by proxy
solicitation or otherwise) the management or policies of the
Company or make any public announcement with respect to any of
the foregoing;
(c) initiate or maintain contact with any officer, director or
employee of the Company or any customer, supplier or
accountant of the Company regarding the Company's business,
operation, prospects or finances; or
(d) enter into any discussion, negotiation, arrangement or
understanding with any third party with respect to the
forgoing.
(7) Contacts With The Company and Personnel. It is understood that all (i)
communications regarding this possible transaction, (ii) requests for
additional information, and (iii) discussions or questions regarding
procedures by us or any of our Representatives will be submitted or
directed to the Advisor. We further agree that, for a period of one
year from the date hereof, we and our affiliates will not solicit for
employment or hire any of the officers, directors or key employees of
the Company, its subsidiaries or its affiliates; provided that the
foregoing provision will not prevent us or our affiliates from
employing any such individual who contacts us or our affiliate on his
or her own initiative without any direct or indirect solicitation by or
encouragement from us or our affiliates (not including a general
solicitation of employment not specifically directed to the employees
of the Company).
(8) No Representation or Warranty. We understand and acknowledge that
neither the Company nor any of its representatives or advisors has made
or makes any representation or warranty, express or implied, as to the
accuracy or completeness of the Evaluation Material We agree the
neither the Company not its representatives or advisors shall have any
liability to us or any of our representatives or advisors relating to
or resulting from the use the Evaluation Material or any errors therein
or omissions therefrom.
(9) Definitive Acquisition Agreement. We understand and agree that no
contract or agreement providing for any transaction involving the
Company shall be deemed to exist between us and the Company unless and
until a Definitive Acquisition Agreement has been executed and
delivered, and we hereby waive, in advance, any claims (including,
without limitation, breach of contract) in connection with any
transaction involving the Company unless and until we and the Company
have entered into a Definitive Acquisition Agreement. We further
acknowledge and agree that the Company reserves the right, in its sole
discretion and for any reason, to reject any and all proposals by us or
any of our Representatives with regard to a transaction between the
Company and us, and to terminate discussions and negotiations with us
at any time.
(10) Remedies. We agree that the Company is relying upon our
representations, warranties and covenants herein contained, which the
Company considers to be the very essence hereof, and we acknowledge and
agree that any breach of this agreement would cause irreparable harm to
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the Company, that money damages alone would not be a sufficient remedy
for any breach of this agreement and that the Company shall be entitled
to (and we shall not oppose the granting to the Company of) equitable
relief, including injunction and specific performance, in the event of
any breach of the provisions of this agreement and we shall be liable
and pay to the Company the reasonable legal fees and disbursements
incurred by the Company in connection with such litigation, including
any appeal therefrom. We further agree to waive any requirement for the
security or posting of any bond in connection with such remacy.
Equitable relief 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 in equity to the Company.
(11) No Waiver; Amendment. It is further understood and agreed that no
failure or delay in exercising any right, power or privilege hereunder
will operate as a waiver thereof, nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. This
agreement may be modified or waived only by a separate writing signed
by the Company (or the Advisor as agent for the Company) and us
expressly to that effect.
(12) Person. The term "person" as used in this agreement will be
interpreted broadly to include, without limitation, the media and any
corporation, company, group, partnership or other entity or individual.
(13) Governing Law. This agreement is for the benefit of the Company and
the Advisor and their respective directors, officers, stockholders,
owners, affiliates and agents, and will be governed by and construed
in accordance with the laws of the state of Georgia. We agree that any
suit brought under or in connection with this agreement shall be
brought in the courts of the state of Georgia or the United States
District Courts located in the City of Atlanta. We waive any objection
to the laying of venue of any proceeding arising out of or relating to
this agreement in the courts of the State of Georgia or the United
States District Courts located in the City of Atlanta.
Very truly yours,
By: /s/ Gregory L. Williams
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Name: Gregory L. Williams
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Title: Executive Vice President
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Company: Tropical Sportswear Int'l Corporation
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Date: 3/16/01
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