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EXHIBIT(c)(3)
EXCLUSIVITY AGREEMENT
This Exclusivity Agreement (this "Agreement") is entered into as of
this 4th day of April, 1997, between The Peak Technologies Group, Inc. ("Peak"),
a Delaware corporation and Xxxxx U.S.A. Inc. ("Xxxxx"), a Delaware corporation.
1. No Solicitation. From the date hereof until the earlier to occur of
(i) May 4, 1997 and (ii) 9:00 am New York time on April 8, 1997 unless, prior to
such time, Peak shall receive notice from Xxxxx that the Board of Directors of
Xxxxx has authorized its officers to consummate a corporate combination with
Peak on the financial terms specified in the April 2, 1997 letter from Xxxxxx X.
Xxxxx to Xxxxxxxx Xxxx (the "Termination Date"), Peak shall not, and shall not
permit any of its subsidiaries, or any of its or their officers, directors,
employees, representatives, agents or affiliates (including, without limitation,
any investment banker, attorney or accountant retained by Peak or any of its
subsidiaries), directly or indirectly, to enter into, solicit, initiate or
continue any discussions or negotiations with, or encourage or respond to any
inquiries or proposals by, or participate in any negotiations with, or provide
any information to, or otherwise cooperate in any other way with, any
corporation, partnership, person or other entity or group (each, a "Person")
(other than Xxxxx or any of its affiliates or representatives), concerning any
offer or proposal which constitutes or is reasonably likely to lead to any
Acquisition Proposal (as defined below). Until the Termination Date, Peak will
immediately notify Xxxxx orally and in writing if any discussions or
negotiations are sought to be initiated, any inquiry or proposal is made, or any
information is requested by any Person with respect to any Acquisition Proposal
or which could lead to an Acquisition Proposal and immediately notify Xxxxx of
all material terms of any proposal which it may receive in respect of any such
Acquisition Proposal, including the identity of the Person making the
Acquisition Proposal or the request for information, if known. Until the
Termination Date Peak shall, and shall cause its subsidiaries and affiliates,
and will use its best efforts to cause their respective officers, directors,
employees, investment bankers, attorneys, accountants and other agents to,
immediately cease and cause to be terminated all discussions and negotiations
that have taken place prior to the date hereof, if any, with any Persons
conducted
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heretofore with respect to any Acquisition Proposal. As used in this
Agreement, "Acquisition Proposal" shall mean any of the following (other than
the transactions contemplated hereunder) involving Peak or any of its
subsidiaries: (i) any merger, consolidation, share exchange, recapitalization,
business combination, or other similar transaction; (ii) any sale, lease
exchange, mortgage, pledge, transfer or other disposition of 10% or more of the
assets of Peak and its subsidiaries, taken as a whole, in a single transaction
or series of transactions; (iii) any tender offer or exchange for or other
purchase of 10% or more of the outstanding shares of the capital stock of Peak
or the filing of a registration statement under the Securities Act in connection
therewith; or (iv) any public announcement of a proposal, plan or intention to
do any of the foregoing.
2. No Agreement. Each party understands and agrees that no contract or
agreement providing for any transaction between them shall be deemed to exist
between them unless and until a final definitive agreement has been executed.
Each party also agrees that unless and until a final definitive agreement
regarding a transaction between them has been executed and delivered, neither
party will be under any legal obligation of any kind whatsoever with respect to
entering into such a transaction by virtue of this Agreement.
3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to the
conflicts of laws principles thereof.
4. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original instrument, but
all of which together
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shall be deemed to be one and the same instrument.
Xxxxx U.S.A. Inc.
By: /s/ Xxxxxx X. Xxxxx
____________________________
Name:
Title:
The Peak Technologies Group, Inc.
By: /s/ Xxxxxxxx X.X. Xxxx
____________________________
Name:
Title:
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