Ex (e)(3)-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 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
EX (e)(3)-1
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:
(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 account 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 foregoing.
(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 that neither the
EX (e)(3)-2
Company nor its representatives or advisors shall have any liability to
us or any of our representatives or advisors relating to or resulting
from the use of 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 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 remedy. 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: EVP
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Company: Tropical Sportswear Int'l Corporation
Date: 3/16/01
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