Exhibit (c)(12)
September 22, 1997
HFS Incorporated
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxx Xxxx
Senior Vice President - Acquisitions
Re: Confidentiality Agreement
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Gentleman:
In connection with your consideration of a possible transaction with
Xxxxxxx Xxxxxx, Inc., a Virginia corporation, and/or one or more of its direct
or indirect subsidiaries or affiliates (collectively, with such subsidiaries of
affiliates, the "Company"), the Company is prepared to make available to you
certain information concerning certain business, operations and assets of the
Company. As a condition to such information being furnished to you and your
directors, officers, employees, agents or advisors (including, without
limitation, solicitors, attorneys, accountants, consultants, bankers and
financial advisors) (collectively, "Representatives"), you agree to treat any
information concerning the Company or any subsidiary or affiliate of 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
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 other actions hereinafter set
forth.
The term "Evaluation Material" 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
HFS Incorporated
September 22, 1997
Page 2
to you or your Representatives pursuant hereto regardless of whether such
information is specifically identified as "confidential". 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 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 known by you to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company 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 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 purpose of evaluating a possible transaction
with the Company and who agree to keep such information confidential and who are
provided with a copy of this letter agreement and agree to be bound by the terms
hereof to the same extent as if they were parties hereto.
In addition, we both agree that, without the prior written consent of the
other party, neither nor its Representatives will disclose to any person the
fact the Evaluation Material has been made available to you, that discussions or
negotiations are taking place concerning a possible transaction involving the
Company or any of the terms, conditions or other facts with respect thereto
(including the status thereof), unless such party is advised by its counsel such
disclosure is required by law and then only with as much prior written notice to
the party as is practical under circumstances. The term "person" as used in
this letter agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual, governmental agency, stock exchange
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, at its sole expense, seek a protective order or other
appropriate remedy and/or waive compliance with the revisions of this letter
agreement. If, in the absence of a protective order or other remedy or the
receipt of a waiver by the
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HFS Incorporated
September 22, 1997
Page 3
Company, you or any of your Representatives are nonetheless, in the opinion of
your counsel, legally compelled to disclose Evaluation Material to any tribunal
or else stand liable for contempt or suffer other censure or penalty to you or
any of your Representatives are otherwise required by law to disclose Evaluation
Material, then 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 reasonable good faith efforts (which shall not include any expenditure
of funds) to preserve the confidentiality of Evaluation Material, including,
without limitation, by cooperating with the Company at the Company's expense to
obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Evaluation Material by such
tribunal.
Without the prior written consent of the Company, none of your directors,
officers or employees who are aware of the Evaluation Material and/or the
possibility of the transaction contemplated hereby will, for the two-year period
from the date hereof solicit or cause to be solicited the employment of any
employee of the Company, provided that the foregoing shall not prohibit general
solicitation made by means of advertising or similar media not directed
specifically to any employee of the Company.
In addition, you hereby acknowledge that you are aware (and that your
Representatives who are apprised of this matter have been or will be advised)
that the United States securities laws restrict persons with material non-public
information about a company obtained directly or indirectly from that company
from purchasing or selling securities of such company, or from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such persons are likely to purchase or sell such
securities.
You hereby further agree that until the expiration of two years from the
date of this Agreement, you shall not without the prior approval of the Board of
Directors of the Company (i) in any manner acquire, agree to acquire or make any
proposal to acquire, directly or indirectly, any securities or property of the
Company or any of its subsidiaries, whether such agreement or proposal is with
the Company or any of its subsidiaries or with a third party; provided that you
may acquire up to five (5%) of the outstanding stock of the Company without
violating the foregoing, (ii) propose to enter into, directly or indirectly, any
merger or business combination involving the Company or any of its subsidiaries,
(v) otherwise act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company or any
of its subsidiaries, (vi) disclose any intention, plan or arrangement
inconsistent with the foregoing or (vii) assist any other persons in connection
with any of the foregoing.
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HFS Incorporated
September 22, 1997
Page 4
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 that case,
or at any time upon the request of the Company for any reason, you will promptly
deliver to the Company all documents (and all 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 Representatives shall be destroyed, and no copy thereof shall be
retained except as may be required by law. 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.
Please confirm your agreement with the forgoing 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,
XXXXXXX XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman, President & CEO
ACCEPTED AND AGREED as of
The date first written above:
HFS INCORPORATED
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
Title: Senior Vice President - Acquisition
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