Exhibit (d)(3)
August 6, 2001
XxxxXxxxxx.XXX Inc. (the "Company") and CareerBuilder, Inc. (jointly, the
"Parties" and, each individually, the "Party") desire to enter into discussions
related to a possible transaction (the "Possible Transaction"). These
discussions will of necessity involve the disclosure by one Party (the
"Disclosing Party") to the other Party (the "Receiving Party") of confidential
and proprietary information.
The parties desire to (i) keep their discussions and the nature and scope
thereof confidential; and (ii) to reach an understanding with respect to the
disclosure of such information and the confidentiality of the discussions in
general.
In this agreement, (a) "Representatives" means any entity which beneficially
owns more than 40% of the equity securities of CareerBuilder, Inc. (the
"CareerBuilder Affiliates") and a Parties' affiliates and its and their
respective directors, officers, employees, agents or representatives, including,
without limitation, its and their respective attorneys, accountants, consultants
and financial advisors, and (b) "person" shall be broadly interpreted to
include, without limitation, any individual, corporation, company, group,
partnership, limited liability company or other entity. The only persons who
beneficially own more than 40% of the equity securities of CareerBuilder, Inc.
are Knight Ridder, Inc. and Tribune Corp.
The term "Confidential Information" includes all non-public information, whether
written or oral, (whatever the form or storage medium) or gathered by
inspection, or acquired, directly or indirectly, by one Party or its
Representatives from the other Party or its Representatives in connection with a
Possible Transaction regardless of whether such information is specifically
identified as "confidential." Each Party recognizes and acknowledges the
competitive value of the Confidential Information and the damage that could
result if the Confidential Information were used or disclosed except as
authorized by this agreement.
The term "Confidential Information" does not include information which (i) was
known to the Receiving Party or its Representatives or was in its or its
Representatives possession prior to the date of its disclosure pursuant to this
agreement; (ii) is or becomes generally available to the public other than
through an unauthorized disclosure by the Receiving Party or its Representatives
in violation of this agreement; (iii) becomes available to the Receiving Party
or its Representatives from a source other than the Disclosing Party or its
Representatives, provided that such source is not, to the Receiving Party's
knowledge, prohibited from transmitting such Confidential Information to the
Receiving Party by a contractual, legal or fiduciary obligation to the
Disclosing Party or any of its Representatives as demonstrated by the written
records of such Party or Representatives which have not had access to the other
Party's Confidential Information.
Except as otherwise required by applicable law or regulatory authority, each
Party agrees to keep confidential and not disclose, and cause its
Representatives to keep confidential and not disclose, to any person the
Confidential Information it or its Representatives receives from the other Party
or its Representatives without the Disclosing Party's prior written consent,
except as provided below. The Receiving Party or its Representatives shall be
entitled to disclose the Confidential Information of the Disclosing Party and
provide copies of the same, without the Disclosing Party's prior written
consent, to those Representatives of the Receiving Party who need to know such
Confidential Information solely for the purpose of evaluating the Possible
Transaction. Both parties shall take reasonable precautions to assure that only
those Representatives who reasonably require Confidential Information in
connection with the evaluation of the Possible Transaction may obtain access to
the same. The Receiving Party shall be responsible for any violations of the
provisions of this agreement caused by any of the Receiving Party's
Representatives.
Neither the Receiving Party nor any of its Representatives shall use the
Confidential Information for any purpose, other than evaluation of the Possible
Transaction. Except to the extent the Receiving Party's legal counsel advises
that disclosure is required by applicable law or regulatory authority, without
the prior written consent of the Disclosing Party, the Receiving Party will not,
and will direct the Receiving Party's Representatives not to, disclose to any
other person that such Confidential Information has been made available, that
discussions or negotiations are taking place concerning the Possible
Transaction, or any of the terms, conditions or other facts with respect to the
Possible Transaction, including the status thereof, or the terms of this
agreement.
In the event that a Receiving Party or anyone to whom the Receiving Party
transmits such Confidential Information pursuant to this agreement is legally
requested (by oral questions, interrogatories, request for information or
documents, subpoena, civil investigative demand or similar process) or otherwise
required to disclose any Confidential Information of a Disclosing Party, the
Receiving Party will provide the Disclosing Party with notice, prior to
disclosing such Confidential Information, so that the Disclosing Party may seek
an appropriate protective order and/or waive compliance with this agreement. If,
in the absence of a protective order or the receipt of a waiver hereunder, the
Receiving Party is nonetheless legally compelled to disclose such Confidential
Information, it may, without liability hereunder, furnish that portion of such
Confidential Information that is legally required and will exercise reasonable
best efforts to obtain assurance that confidential treatment will be accorded
such Confidential Information.
Neither the execution of this agreement, nor the furnishing of any materials
hereunder, shall be construed as granting either expressly or by implication,
estoppel or otherwise any license under any intellectual property or patent now
or hereafter owned by or controlled by the Disclosing Party furnishing the
materials.
The Confidential Information shall remain the property of the Disclosing Party,
and the Disclosing Party may demand the return thereof at any time by notice to
the Receiving Party. Upon receipt of such notice, the Receiving Party shall, at
the Disclosing Party's option, either (a) return to the Disclosing Party all
drawings, data, memoranda and other written materials together with any tapes
and computer stored information, including any copies thereof, embodying,
containing or relating to the Disclosing Party's Confidential Information, in
the possession of the Receiving Party or its Representatives; or (b) destroy and
cause each of its Representatives to destroy each and every copy of any such
materials or the parts thereof embodying, containing or relating to such other
party's Confidential Information; provided, however, that one (1) copy of
such Confidential Information may be retained by the Receiving Party on a
confidential basis for purposes of verification. Any destruction pursuant to (b)
in the preceding sentence shall be promptly confirmed in writing.
Each party agrees (i) not to directly or indirectly contact or communicate with
any executive or other employee of the Disclosing Party concerning the Possible
Transaction, or to seek any information in connection therewith from such
person, without the express consent of the Chairman, President, Chief Executive
Officer or Chief Financial Officer of the respective Disclosing Party; (ii) not
to discuss with or offer to any third party (other than CareerBuilder
Affiliates) an equity participation in the Possible Transaction or any other
form of joint acquisition without the other Party's prior written consent; and
(iii) without the other Party's prior written consent, for a period of one year
from the date of this agreement neither Party will directly solicit for
employment any person who is now employed by the other Party in an executive or
management level position or otherwise considered to be a key employee;
provided, that nothing contained herein shall prohibit a Party from (I) placing
public advertisements or conducting any other form of general solicitation which
is not specifically targeted at particular employees of the other Party or (II)
hiring or employing any person who contacts such Party on his or her own
initiative without any direct or indirect solicitation by such Party.
Each Party acknowledges that the other would be irreparably injured if the
Receiving Party breaches any of its obligations under this agreement.
Accordingly, the Disclosing Party will be entitled to injunctive relief and
specific performance, in addition to any other remedy available at law or in
equity.
Each Party agrees that until one year from the date of this agreement, the
Receiving Party will not without the prior approval of the Board of Directors of
the Disclosing Party (i) acquire or make any proposal to acquire any securities
or property of the Disclosing Party, (ii) propose to enter either into any
merger or business combination involving the Disclosing Party or purchase a
material portion of the assets of the Disclosing Party, (iii) make or
participate in any solicitation of proxies to vote, or seek to advise or
influence any person with respect to the voting of any securities of the
Disclosing Party, (iv) form, join or participate in a "group" (within the
meaning of Section 13(d)(8) of the Securities Exchange Act of 1934) with respect
to any voting securities of the Disclosing Party, (v) otherwise act or seek to
control or influence the management, Board of Directors or policies of the
Disclosing Party, (vi) disclose any intention, plan or arrangement inconsistent
with the foregoing or (vii) take any action which might require the Disclosing
Party to make public announcement regarding the possibility of a business
combination or merger. Except as provided above, each Party also agrees during
such period not to request the Disclosing Party (or its directors, officers,
employees, agents or representatives) to amend or waive any provision of this
paragraph. Notwithstanding the foregoing, nothing in this Agreement (including
any restriction on the use of information) shall limit or restrict
CareerBuilder, Inc. or its affiliates (including CareerBuilder Affiliates) from
taking any of the actions set forth in this paragraph from and after any
announcement by the Company that it has entered into a definitive agreement in
respect of any transaction which if consummated would result in (A) any
acquisition or purchase from the Company by any person or "group" (as defined
under Section 13(d) of the Exchange Act and the rules and regulations
thereunder) of more than a 50% interest in the total outstanding voting
securities of the Company or any of its subsidiaries or any tender offer or
exchange offer that if consummated would result in any person or "group"
(as defined under Section 13(d) of the Exchange Act and the rules and
regulations thereunder) beneficially owning 50% or more of the total outstanding
voting securities of the Company or any of its subsidiaries or any merger,
consolidation, business combination or similar transaction involving the Company
pursuant to which the stockholders of the Company immediately preceding such
transaction hold less than 50% of the equity interests in the surviving or
resulting entity of such transaction; (B) any sale, lease (other than in the
ordinary course of business), exchange, transfer, license (other than in the
ordinary course of business), acquisition, or disposition of more than 50% of
the assets of the Company; or (C) any liquidation or dissolution of the Company.
The Receiving Party acknowledges that neither the Disclosing Party nor its
Representatives makes any representations or warranty hereunder as to the
accuracy or completeness of any Confidential Information or other information
disclosed pursuant to this agreement. The Receiving Party agrees that neither
the Disclosing Party nor its Representatives shall have any liability hereunder
to the Receiving Party or to any of the Receiving Party's Representatives as a
result of the use of such Confidential Information by the Receiving Party and
the Receiving Party's Representatives, it being understood that only those
particular representations and warranties that may be made to the Receiving
Party by the Disclosing Party or its affiliates in a definitive transaction
agreement, when, as and if it is executed, and subject to such limitations and
restrictions as may be specified in such definitive agreement, shall have any
legal effect.
If any term or provision of this agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms
and provisions of this agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
This agreement comprises the full agreement between the Parties concerning the
Confidential Information. This agreement supersedes any prior understandings or
agreements, regardless of form, between the Parties with respect to the
Confidential Information. No amendments, changes or modifications may be made to
this agreement without the express written consent of each of the Parties
hereto.
This agreement shall be governed by and construed in accordance with the laws of
the State of New York, applicable to contracts made and to be performed therein.
Each Party understand and agrees that no failure or delay by the other Party in
exercising any right, power or privilege under this agreement shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or future exercise of any right, power or privilege hereunder.
This agreement shall terminate one year from the date hereof.
All counterpart copies will constitute but one agreement with respect to the
subject matter of this agreement.
XxxxXxxxxx.XXX Inc. CareerBuilder, Inc.
By: /s/ XXXXX XXXXX By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxx Xxxxx Name: Xxxxxx X. XxXxxxxx
Title: Chief Financial Officer Title: Chief Executive Officer
