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EXHIBIT 7
June 8, 1995
Arkansas Best Corporation
P.O. Box 10048
Fort Smith, AR 72917-0048
Attention: Mr. Robert A. Young III
President -- CEO
Dear Robert:
In connection with your consideration of a possible negotiated transaction
with WorldWay Corporation and/or its subsidiaries, affiliates or divisions
(collectively, with such subsidiaries, affiliates and divisions, the "Company"),
the Company is prepared to make available to you certain information concerning
the business, financial condition, operations, assets and liabilities of the
Company. As a condition to such information being furnished to you and your
directors, officers, employees, agents, advisors, attorneys, accountants,
consultants, bankers and financial advisors (collectively, "Representatives"),
you agree to treat any information concerning the Company (whether prepared by
the Company, its advisors or otherwise and irrespective of the form of
communication) which is furnished to you or to your Representatives now or in
the future by or on behalf of the Company (herein collectively referred to as
the "Evaluation Material") in accordance with the provisions of this letter
agreement, and to take or abstain from taking certain other actions hereinafter
set forth.
The term "Evaluation Material" also shall be deemed to include 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 Representative pursuant
hereto. The term "Evaluation Material" does not include information which (i) is
or becomes generally available to the public other than as a result of a
disclosure by you or your Representatives, (ii) was within your possession prior
to its being furnished to you by or on behalf of the Company pursuant hereto,
provided that the source of such information was not known by you to be bound by
a confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company or any other party with respect to
such information or (iii) becomes available to you on a nonconfidential basis
from a source other than the Company or any of its Representatives, provided
that such source is not bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality of the Company or
any other party with respect to such information.
You hereby agree that you and your Representatives shall use the Evaluation
Material solely for the purpose of evaluating a possible negotiated transaction
between the Company and you, that the Evaluation Material will be kept
confidential and that you and your Representatives will not disclose any of the
Evaluation Material in any manner whatsoever, provided, however, that (i) you
may make any disclosure of such information to which the Company gives its prior
written consent and (ii) any of such information may be disclosed to your
Representatives who need to know such information for the sole purpose of
evaluating a possible negotiated transaction with the Company and who are made
aware of the existence of this agreement. In any event, you shall be responsible
for any breach of this letter agreement by any of your Representatives and you
agree at your sole expense, to take all reasonable measures (including but not
limited to court proceedings) to restrain your Representatives from prohibited
or unauthorized disclosure or use of the Evaluation Material.
In addition, you agree that, without the prior written consent of the
Company, you and your representatives will not disclose to any other person the
fact that the Evaluation Material has been made available to you, that
discussions or negotiations are taking place concerning a possible transaction
involving
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the Company or any of the terms, conditions, or other facts with respect thereto
(including the status thereof) provided, that you may make such disclosure if
you determine in good faith that such disclosure must be made by you in order
that you not commit a violation of law. Without limiting the generality of the
foregoing, you further agree that, without the prior written consent of the
Company, you will not, directly or indirectly, enter into any agreement,
arrangement or understanding, or any discussions which might lead to such
agreement, arrangement or understanding, with any person regarding a possible
transaction involving the Company. The term "person" as used in this letter
agreement shall be broadly interpreted to include the media and any corporation,
partnership, group, individual or other entity.
In the event that you or any of your Representatives are requested or
required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Evaluation Material, you shall provide
the Company with prompt written notice of any such request or requirement so
that the Company may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this letter agreement. If, in the
absence of a protective order or other remedy or the receipt of a waiver by the
Company, you or any of your Representatives are nonetheless, in the written
opinion of counsel, legally compelled to disclose Evaluation Material to any
tribunal or else stand liable for contempt or suffer other censure or penalty,
you or your Representative may, without liability hereunder, disclose to such
tribunal only that portion of the Evaluation Material which such counsel advises
you is legally required to be disclosed, provided that you exercise your best
efforts to preserve the confidentiality of the Evaluation Material, including,
without limitation, by cooperating with the Company to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the Evaluation Material by such tribunal.
If you decide that you do not wish to proceed with a transaction with the
Company, you will promptly inform the Company of that decision. In the case, or
at any time upon the request of the Company for any reason, you will promptly
deliver to the Company all Evaluation Material (and copies thereof) furnished to
you or your Representatives by or on behalf of the Company pursuant hereto. In
the event of such a decision or request, all other Evaluation Material prepared
by you or your Representative shall be destroyed and no copy thereof shall be
retained. Notwithstanding the return or destruction of the Evaluation Material,
you and your Representatives will continue to be bound by your obligations of
confidentiality and other obligations hereunder.
You understand and acknowledge that neither the Company nor any of its
Representatives make any representation or warranty, express or implied, as to
the accuracy or completeness of the Evaluation Material. You agree that neither
the Company nor any of its Representatives shall have any liability to you or to
any of your Representatives relating to or resulting from the use of the
Evaluation Material or any errors therein or omissions therefrom. Only those
representations or warranties which are made in a final definitive agreement
regarding any transactions contemplated hereby, when, as and if executed, and
subject to such limitations and restrictions as may be specified therein, will
have any legal effect.
Both parties understand and agree that no contract or agreement providing
for any transaction involving the Company shall be deemed to exist between you
and the Company unless and until a final definitive agreement has been executed
and delivered, and both parties hereby waive, in advance, any claims (including,
without limitation, breach of contract) in connection with any transaction
involving the Company unless and until the parties shall have entered into a
final definitive agreement. Both parties also agree that unless and until a
final definitive agreement regarding a transaction between the Company and you
has been executed and delivered, neither the Company nor you will be under any
legal obligation of any kind whatsoever with respect to such a transaction by
virtue of this letter agreement except for the matters specifically agreed to
herein. You further acknowledge and agree that the Company reserves the right,
in its sole discretion, to reject any and all proposals made by you or any of
your Representatives with regard to a transaction between the Company and you,
and to terminate discussions and negotiations with you at any time. You further
understand that (i) the Company and its Representatives shall be free to conduct
any process for any transaction involving the Company, if and as they in their
sole discretion shall determine (including without limitation, negotiating with
any other interested parties and entering into a definitive agreement without
prior notice to you or any other person), (ii) any procedures relating to such
process or transaction may be changed at any time without notice
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to you or any other person, and (iii) you shall not have any claims whatsoever
against the Company, its representatives or any of their respective directors,
officers, stockholders, owners, affiliates or agents arising out of or relating
to any transaction involving the Company (other than those as against the
parties to a definitive agreement with you in accordance with the terms thereof)
nor, unless a definitive agreement is entered into with you, against any third
party with whom a transaction is entered into. Neither this paragraph nor any
other provision in this agreement can be waived or amended except by written
consent of both parties, which consent shall specifically refer to this
paragraph (or such provision) and explicitly make such waiver or amendment.
You agree that, until the expiration of the "Restricted Period" as defined
in the next-to-last paragraph of this letter agreement, neither you nor any of
your affiliates will, unless invited (in writing on an unsolicited basis) by
action of the Board of Directors of the Company: (i) acquire, offer or propose
to acquire, or agree to seek to acquire, directly or indirectly, by purchase or
otherwise, any securities or direct or indirect rights or opinions to acquire
any securities of the Company or any subsidiary thereof, or of any successor to
or person in control of the Company, or any assets of the Company or any
subsidiary or division thereof or of any such successor or controlling person;
(ii) enter into or agree, offer, propose or seek to enter into, or otherwise be
involved in or part of, directly or indirectly, any acquisition transaction or
other business combination relating to all or part of the Company or its
subsidiaries or any acquisition transaction for all or part of the assets of the
Company or any subsidiary of the Company or any of their respective businesses;
(iii) make, or in any way participate in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are used in the rules of the
Securities and Exchange Commission) to vote, or seek to advise or influence any
person or entity with respect to the voting of, any voting securities of the
Company; (iv) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect
to any voting securities of the Company or any of its subsidiaries; (v) seek or
propose, alone or in concert with others, to influence or control the Company's
management or policies; (vi) directly or indirectly enter into any discussions,
negotiations, arrangements or understandings with any other person with respect
to any of the foregoing activities or propose any of such activities to any
other person; (vii) advise, assist, encourage, act as a financing source for or
otherwise invest in any other person in connection with any of the foregoing
activities; or (viii) disclose any intention, plan or arrangement inconsistent
with any of the foregoing. You will promptly advise the Company of any material
inquiry or proposal made to you with respect to any of the foregoing. You also
agree that during the Restricted Period referred to in the second preceding
sentence, neither you nor any of your affiliates will: (i) request the Company
or its advisors, directly or indirectly, to (1) amend or waive any provision of
this paragraph (including this sentence) or (2) otherwise consent to any action
inconsistent with any provision of this paragraph (including this sentence); or
(ii) take any initiative with respect to the Company or any of its subsidiaries
that could require the Company to make a public announcement regarding (1) such
initiative, (2) any of the activities referred to in the second preceding
sentence, (3) the possibility of any acquisition transaction or business
combination, or (4) the possibility of your, or any other person's, acquiring
control of the Company, whether by means of a business combination or otherwise.
Each party agrees that during the Restricted Period, without the prior
written consent of the other party, it will not, directly or indirectly, solicit
to hire or hire (or cause or seek to cause to leave the employ of the
other): (i) any executive employed by the other; (ii) any other employee of the
other or any subsidiary of the other with whom you have had contact or who (or
whose performance) became known to you in connection with the process
contemplated by this agreement.
It is understood and agreed that no failure or delay by the Company 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
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
Notwithstanding anything in this agreement to the contrary, all
restrictions applicable to you and contained in this letter agreement, including
all restrictions with respect to the confidentiality of the Evaluation Material,
shall terminate and expire at the earliest to occur of any of the following
(herein referred
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to as the "Restricted Period"): (i) December 31, 1995; (ii) at such time that
the Company announces or otherwise enters into an agreement contemplating the
sale of the Company or all or substantially all of its assets; (iii) upon any
person acquiring, directly or indirectly, beneficial ownership of more than 15%
of the Company's outstanding Common Stock; (iv) upon the announcement or
commencement of any tender offer or exchange offer for any of the Company's
Common Stock; or (v) upon the announcement or execution of any agreement
contemplating an extraordinary transaction affecting the Company or its
outstanding Common Stock.
Please confirm your agreement with the foregoing by signing and returning
one copy of this letter to the undersigned, whereupon this letter agreement
shall become a binding agreement between you and the Company.
Very truly yours,
WORLDWAY CORPORATION
By: /s/ LARY R. SCOTT
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Lary R. Scott
Chairman and CEO
Accepted and agreed as of the date first written above:
ARKANSAS BEST CORPORATION
By: /s/ ROBERT A. YOUNG III
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Name: Robert A. Young III
Title: President -- CEO
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