1
EXHIBIT (c)(3)
[COMPUWARE LETTERHEAD]
June 2, 1999
Xx. Xxxxxx X. Xxxxxxxx
President and CEO
Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Dear Xx. Xxxxxxxx:
Viasoft, Inc. ("Viasoft") and Compuware Corporation ("Compuware") (Viasoft
and Compuware being referred herein individually as a "Party") and collectively
as the "Parties") have requested business and financial information from each
other in connection with a possible transaction between the parties or their
respective shareholders. As a condition to it being furnished such information,
each Party agrees to treat all Confidential Evaluation Information (as
hereinafter defined) furnished to such Party in accordance with the provisions
set forth herein.
The term "Confidential Evaluation Material" means any confidential or
proprietary information, data or knowledge concerning the disclosing Party,
regardless of form, which is delivered or disclosed (whether before or after the
date hereof) by or on behalf of the disclosing Party to the receiving Party in
writing (whatever the form or storage medium), orally or through visual means,
or which receiving Party learns or obtains orally, through observation, or
through analysis, compilation or other study of such information, data or
knowledge. Without limiting the foregoing, the term "Confidential Evaluation
Material" does not include information which the receiving Party can demonstrate
(a) was already known to the receiving Party prior to it being furnished by or
on behalf of the disclosing Party, provided such source of information was not
bound by a confidentiality agreement with the disclosing Party; (b) is now or
hereafter becomes generally available to the public other than as a result of
disclosure by the receiving Party or its representatives or agents; or (c) was
or becomes available to receiving Party from a source other than disclosing
Party, or its advisors, provided such source is not bound by a confidentiality
agreement with the disclosing Party.
Each Party agrees it will use the Confidential Evaluation Material solely
for the purpose of evaluating and implementing a possible transaction between
the Parties, and that such Confidential Evaluation Material will be kept
confidential by each Party for a period of two (2) years following the date
hereof; provided, however, that any such Confidential Evaluation Material may be
disclosed to a receiving Party's directors, officers, employees, advisors, and
agents who need access to such Confidential
2
Xx. Xxxxxx X. Xxxxxxxx
Viasoft, Inc.
Page 2
Evaluation Material for the purpose of evaluating and seeking to implement any
such transaction between the Parties (it being understood and agreed that such
persons shall be informed by each Party of the confidential or proprietary
nature of the Confidential Evaluation Material and shall be directed by each
Party to treat such Confidential Evaluation Material confidentially and not to
use it other than for the purposes described above). In any event, each Party
shall be responsible for any improper use of any Confidential Evaluation
Material by its respective directors, officers, employees, advisors, or agents.
In the event that either Party (or any of its directors, officers,
employees, advisors, or agents) is requested in any proceeding to disclose any
Confidential Evaluation Material, such Party will give the other Party prompt
notice of such request so that the other Party may seek any appropriate
protective order or other appropriate remedy. It is further agreed that, if in
the absence of a protective order such Party is nonetheless compelled to
disclose Confidential Evaluation Material, such Party may disclose such
information without liability hereunder; provided, however, that such Party give
the other Party written notice of the information to be disclosed as far in
advance of its disclosure as is practicable and, upon the other Party's request,
use reasonable efforts to obtain assurances that confidential treatment will be
accorded to such information.
Each Party further agrees that it will not, and will cause its respective
directors, officers, employees, advisors, and agents not to, disclose to any
person (including current, former or prospective clients or vendors of either
Party) that it is having or has had discussions with the other Party, except
that it may make such disclosure if it has received the written opinion of its
outside legal counsel that such disclosure must be made by it in order that it
not commit a violation of law.
Each Party agrees that at any time upon the other Party's request such
Party shall promptly redeliver to the other Party all written Confidential
Evaluation Material of the other Party and that such Party will not retain any
copies, extracts or other reproductions in whole or in part of such material.
All documents, memorandum, notes and other writings whatsoever (including all
copies, extracts, or other reproductions) prepared by the receiving Party or its
directors, officers, employees or agents based on the Confidential Evaluation
Material of the disclosing Party shall be destroyed, and such destruction shall
be certified in writing to the other Party. The terms of this paragraph shall
not be construed to require the destruction of general memorandum, notes and
other writings, including but not limited to minutes of the board of directors,
created in the normal course of a Party's business.
The redelivery of the Confidential Evaluation Material or the termination
of discussions between the Parties shall not relieve the Parties'
confidentiality or other obligations hereunder. All such obligations shall
survive the termination of such discussions.
3
Xx. Xxxxxx X. Xxxxxxxx
Viasoft, Inc.
Page 3
Subject only to the express obligations of confidentiality set forth
herein, this Agreement shall not be construed to limit a receiving Party's
right to develop, obtain or market services, software products or technologies
competitive or equivalent to those of the other Party or otherwise to compete
with the other Party.
The Parties agree that unless a definitive agreement with respect to a
transaction has been executed and delivered, neither Party will be under any
legal obligation of any kind whatsoever with respect to any such transaction by
virtue of this or any written or oral expression with respect to such a
transaction by the Parties or our respective directors, officers, employees, or
any other representatives except, in the case of this letter agreement, for
the matters specifically agreed to herein.
Compuware acknowledges that neither Viasoft nor its representatives
(including Broadview International LLC) has made any express or implied
representation or warranty as to the accuracy or completeness of the
Confidential Evaluation Material, and expressly disclaims any and all liability
that may be based on the Confidential Evaluation Material, errors therein or
omissions therefrom. Compuware agrees that it is not entitled to rely on the
accuracy or completeness of the Confidential Evaluation Material and that it
shall be entitled to rely solely on the representations and warranties made in
any definitive agreement executed and delivered by Viasoft and Compuware in
connection with a transaction.
The Parties agree, for a period of two (2) years from the date of this
Agreement, that each Party shall not directly or indirectly solicit for
employment any employee of the other Party who became known to the Party in
connection with such Party's consideration of the proposed transaction
referenced herein.
The Parties agree that, for a period of one (1) year from the date of this
Agreement, neither Party nor any of its affiliates, will, without prior written
consent of the other Party: (i) acquire, offer to acquire, or agree to acquire,
directly or indirectly, by purchase or otherwise, any voting securities or
direct or indirect rights to acquire any voting securities of the other Party
or any subsidiary thereof, of any successor to or person in control of the
other Party, or any assets of the other Party or any subsidiary or division
thereof or of any successor or controlling person; (ii) make, or in any way
participate in, directly or indirectly, any solicitation of proxies to vote,
or seek to advise or influence any person or entity with respect to the voting
of, any voting securities of the other Party; (iii) form, join or in any way
participate in a "group" (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934) with respect to any voting securities of the other Party;
(iv) otherwise act or seek to control or influence the management, Board of
Directors or policies of the other Party; (v) make any public announcement with
respect to, or submit a proposal for, or offer of, any extraordinary
transaction involving the other Party or its securities or assets; (vi) take
any action that might require the other Party to make an public announcement
regarding the possibility of a business
4
Xx. Xxxxxx X. Xxxxxxxx
Viasoft, Inc.
Page 4
combination or merger; (vii) request the other Party or any of its
representatives, directly or indirectly, to amend or waive any provision of this
paragraph.
The Parties agree that money damages would not be a sufficient remedy for
any breach of this Agreement by the Parties or their respective directors,
officers, employees, advisors, or agents, and that in addition to all other
remedies available to the Parties at law or in equity, the Parties shall be
entitled to specific performance and injunctive or other equitable relief as a
remedy for any such breach and each Party further agrees to waive, and to use
its best efforts to cause its respective directors, officers, employees,
advisors, and agents to waive, any requirement for the securing or posting of
any bond in connection with such remedy.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Michigan, without giving effect to any conflict of laws
principles thereof that would lead to the application of the laws of another
state. By execution and delivery of this Agreement, each Party represents and
warrants that it has been duly authorized by all necessary corporate action
and that the person signing this Agreement is duly authorized to do so.
Upon execution and delivery by the Parties, this Agreement will constitute
our entire agreement with respect to the subject matter hereof.
Very truly yours,
COMPUWARE CORPORATION
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Executive Vice President
AGREED TO AND ACCEPTED
THIS 2nd day of June:
----- ------
Viasoft, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------
Title: Chairman & CEO
----------------------
