EXHIBIT (c)(3)
[Letterhead of Microcom, Inc.]
April 9, 1997
Xxxx X. Xxxx, Senior Vice President
and General Manager, Communications
Products Group
Compaq Computer Corporation
20555 SH249
Houston, Texas 77070
CONFIDENTIALITY AGREEMENT
Dear Xxxx:
In connection with your possible interest in the acquisition of all or part
of the equity or assets as contemplated by that certain draft Agreement and
Plan of Merger, (any, a "Transaction") of Microcom, Inc. (the "Company"),
you have requested that we or our representatives furnish you or your
representatives with certain information relating to the Company or the
Transaction. All such information (whether written or oral) furnished
(whether before or after the date hereof) by us or our directors, officers,
employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys and accountants) or agents (collectively,
"our Representatives") to you or your directors, officers, employees,
affiliates, representatives (including, without limitation, financial
advisors, attorneys and accountants) or agents or your potential sources of
financing for the Transaction (collectively, "your Representatives") and
all analyses, compilations, forecasts, studies or other documents prepared
by you or your Representatives in connection with your or their review of,
or your interest in, the Transaction which contain or reflect any such
information is hereinafter referred to as the "Information". The term
Information will not, however, include information which (i) is or becomes
publicly available other than as a result of a disclosure by you or your
Representatives or (ii) is or becomes available to you on a nonconfidential
basis from a source (other than us or our Representatives) which, to the
best of your knowledge after due inquiry, is not prohibited from disclosing
such information to you by a legal, contractual or fiduciary obligation to
us.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep the Information confidential
and will not (except as required by applicable law, regulation or legal
process, and only after compliance with paragraph 3 below), without our
prior written consent, disclose any Information in any manner
whatsoever, and (ii) will not use any Information other than in
connection with the Transaction; provided, however, that you may reveal
the Information to your Representatives (a) who need to know the
Information for the purpose of evaluating the Transaction, (b) who are
informed by you of the confidential nature of the Information and (c)
who agree to act in accordance with the terms of this letter agreement.
You will cause your Representatives to observe the terms of this letter
agreement, and you will be responsible for any breach of this letter
agreement by any of your Representatives.
2. In the event that you or any of your Representatives are requested
pursuant to, or required by, applicable law, regulation or legal process
to disclose any of the Information, you will notify us promptly so that
we may seek a protective order or other appropriate remedy or, in our
sole discretion, waive compliance with the terms of this letter
agreement. In the event that no such protective order or other remedy
is obtained, or that the Company waives compliance with the terms of
this letter agreement, you will furnish only that portion of the
Information which you are advised by counsel is legally required and
will exercise all reasonable efforts to obtain reliable assurance that
confidential treatment will be accorded the Information.
3. If you determine not to proceed with the Transaction, you will promptly
inform our Representative, Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"), of that decision and, in that case, and at any time upon the
request of the Company or any of our Representatives, you will either
(i) promptly destroy all copies of the written Information in your or
your Representatives' possession and confirm such destruction to us in
writing, or (ii) promptly deliver to the Company at your own expense all
copies of the written Information in your or your Representatives'
possession. Any oral Information will continue to be subject to the
terms of this letter agreement.
4. You acknowledge that neither we, nor Xxxxxx Xxxxxxx or its affiliates,
nor our other Representatives, nor any of our or their respective
officers, directors, employees, agents or controlling persons within the
meaning of Section 20 of the Securities Exchange Act of 1934, as
amended, makes any express or implied representation or warranty as to
the accuracy or completeness of the Information, and you agree that no
such person will have any liability relating to the Information or for
any errors therein or omissions therefrom. You further agree that you
are not entitled to rely on the accuracy or completeness of the
Information and that you will be entitled to rely solely on such
representations and warranties as may be included in any definitive
agreement with respect to the Transaction, subject to such limitations
and restrictions as may be contained therein.
5. You are aware, and you will advise your Representatives who are informed
of the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the
purchase or sale of securities by any person who has received material,
non-public information from the issuer of such securities and on the
communication of such information to any other person when it is
reasonably foreseeable that such other person is likely to purchase or
sell such securities in reliance upon such information.
6. You agree that, for a period of two years from the date of this letter
agreement, you will not, directly or indirectly, solicit for employment
or hire any employee of the Company or any of its subsidiaries with whom
you have had contact or who were discussed with you in connection with
your consideration of the Transaction; provided, however, that the
foregoing provision will not prevent you from employing any such person
who (i) contacts you on his or her own initiative without any direct or
indirect solicitation by you (it being understood that any public
general solicitation not directed toward any particular individual or
group of individuals will not constitute solicitation for these
purposes) or (ii) who is terminated by such person's employer prior to
commencement of discussions with you.
7. Prior to execution of any definitive agreement with respect to the
Transaction, you agree that all (i) communications regarding the
Transaction, (ii) requests for additional information, facility tours or
management meetings, and (iii) discussions or questions regarding
procedures with respect to the Transaction, will be first submitted or
directed to Xxxxxx Xxxxxxx and not to the Company. You acknowledge and
agree that (a) we may, without limitation, negotiate with any
prospective buyer and enter into a preliminary or definitive agreement
without prior notice to you or any other person, (b) we reserve the
right, in our sole discretion, to change the procedures relating to our
consideration of the Transaction at any time without prior notice to you
or any other person, to reject any and all proposals made by you or any
of your Representatives with regard to the Transaction, and to terminate
discussions and negotiations with you at any time and for any reason,
and (c) unless and until a written definitive agreement concerning the
Transaction has been executed, neither we nor any of our Representatives
will have any liability to you with respect to the Transaction, whether
by virtue of this letter agreement, any other written or oral expression
with respect to the Transaction or otherwise.
8. You acknowledge that remedies at law may be inadequate to protect us
against any actual or threatened breach of this letter agreement by you
or by your Representatives, and, without prejudice to any other rights
and remedies otherwise available to us, you agree to the granting of
injunctive relief in our favor without proof of actual damages. In the
event of litigation relating to this letter agreement, if a court of
competent jurisdiction determines in a final, nonappealable order that
this letter agreement has been breached by you or by your
Representatives, then you will reimburse the Company for its costs and
expenses (including, without limitation, legal fees and expenses)
incurred in connection with all such litigation.
9. You agree that no failure or delay by us 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 right, power or privilege
hereunder.
10. This letter agreement will be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts applicable to
contracts between residents of that State and executed in and to be
performed in that State.
11. This letter agreement contains the entire agreement between you and us
concerning the confidentiality of the Information, and no modifications
of this letter agreement or waiver of the terms and conditions hereof
will be binding upon you or us, unless approved in writing by each of
you and us.
Please confirm your agreement with the foregoing by signing and returning to
the undersigned the duplicate copy of this letter enclosed herewith.
Very truly yours,
MICROCOM, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
Accepted and Agreed as of the date
first written above:
COMPAQ COMPUTER CORPORATION
By:___________________________________
Name:_________________________________
Title:________________________________
