EXHIBIT 3
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT ("Agreement") is made this 14th day of
April, 1999, by and between URS CORPORATION, a Delaware corporation with its
principal office located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 ("URS"), and DAMES & XXXXX GROUP, a Delaware corporation with
its principal office located at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 ("Dames & Xxxxx").
RECITALS
A. URS and Dames & Xxxxx have expressed interest in exploring the
possibility of entering into some form of business combination or similar
transaction between URS and Dames & Xxxxx (a "Transaction").
B. Toward this end, URS desires to investigate and examine the business
operations, accounts, books, records, financial condition and services of Dames
& Xxxxx, and Dames and Xxxxx desires to investigate and examine certain aspects
of the financial resources of URS.
C. The parties are willing to facilitate such investigations and
examinations by providing each other with certain information and other
assistance upon the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing recitals and of the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Dames & Xxxxx shall permit certain authorized officers, employees,
attorneys, financial advisors, accountants and other representatives
("Representatives") of URS, as identified in advance, to examine certain books,
records, accounts, documents and other materials of Dames & Xxxxx, and to
discuss its business and financial affairs with designated Representatives of
Dames and Xxxxx. URS shall permit certain Representatives of Dames & Xxxxx, as
identified in advance, to examine the financing commitments and related
materials obtained by URS relating to the ability of URS to fund and consummate
a Transaction, and to discuss its business and financial affairs with designated
Representatives of URS.
2. The term "Confidential Information," as used in this Agreement, shall
mean information or material relating to one party obtained by or provided to
the other party, directly or indirectly, whether or not in writing, and whether
delivered to one party by the other party, obtained or ascertained as a result
of access to the premises of the other party or any communication with any
officer, director, shareholder, employee, agent or other representative of the
other party, or obtained or ascertained in any other manner. Without limiting
the generality of the foregoing, Confidential Information includes, but is not
limited to, the following types of information: designs, drawings,
specifications, data, diagrams, technical information, flow charts, marketing
techniques and other information related to customers and suppliers, trade
secrets, pricing policies, contracts, financial information, analyses,
forecasts, studies and any other information about the business or operations of
a party designated as Confidential Information. Notwithstanding the foregoing,
Confidential Information does not include information which: (a) was known to a
party without any obligation of confidentiality prior to the
disclosure by the other party; (b) is or becomes generally available to the
public other than by breach of this Agreement or any other agreement; (c) is
revealed to a party by a third party who to the knowledge of such party has not
breached any obligation of confidentiality; or (d) is independently developed by
a party or its Representatives.
3. URS and Dames & Xxxxx agree to hold, and to cause their respective
Representatives to agree to hold, all Confidential Information of the other
party in confidence, and not to directly or indirectly cause, permit or enable
the disclosure, publication, transfer, misappropriation or revealing to any
person or entity of such Confidential Information, other than to their
Representatives who have a need to know in connection with discussions
concerning a possible Transaction, without the express prior written consent of
a duly authorized Representative of such party, except as required by law. URS
and Dames & Xxxxx also agree, and will cause their respective Representatives to
agree, not to use the Confidential Information of the other party for any
purpose at any time, other than for the sole purpose of considering and
evaluating a possible Transaction. Each of the parties will be responsible for
any breach of this Agreement by its Representatives to the extent that such
party would be responsible therefor under principles of agency law or as a
"controlling person" under Section 21A(b)(a)(A) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and each party shall be entitled to
directly enforce such agreement.
4. In furtherance of the foregoing, each party agrees not to use any
Confidential Information of the other party in any way directly or indirectly
detrimental to the other party. In particular, each party agrees that for a
period of twelve months from the date of this Agreement, without the prior
written consent of the other party, it will not knowingly, as a result of
knowledge or information obtained from the Confidential Information of the other
party, directly or indirectly, (i) solicit for employment or hire any employee
of the other party with whom its Representatives have had contact or who became
known to them in connection with their consideration of a possible Transaction,
or (ii) divert or attempt to divert any business or customer of the other party;
provided that nothing in this Section 4 shall prevent either party from hiring
an employee of the other party who responds to general employment solicitations
in the ordinary course of the hiring party's business (including published
advertisements) not specifically directed to any such employee.
5. Dames & Xxxxx further agrees, that until May 7, 1999, or for such
further period up to May 31, 1999 as the parties are continuing to negotiate
towards a definitive agreement relating to a possible Transaction, or for such
further period as the parties may agree in writing to further extend this
Section 5, Dames & Xxxxx and its directors, officers, affiliates and other
Representatives agree not to, directly or indirectly, solicit, initiate, respond
to, entertain, encourage submission of proposals or offers, provide information
or enter into negotiations or discussions with or in any manner encourage,
discuss, accept or consider any proposal or offer of any person other than URS
relating to the acquisition of all or a substantial portion of the assets,
business or capital stock of Dames & Xxxxx; provided that nothing in this
paragraph shall prevent Dames & Xxxxx or its directors or officers from
responding to and considering unsolicited firm offers for any such transaction
from a person other than URS if and to the extent that, in the written opinion
of Dames & Xxxxx, failure to do so would constitute a violation of applicable
law. Dames & Xxxxx will immediately terminate any and all active discussions or
negotiations with any other party regarding any such possible transaction, and
agrees to immediately inform
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URS in writing of the receipt, terms and other details of any unsolicited
inquiry or proposal regarding any such transaction if received by Dames & Xxxxx
or its Representatives.
6. URS agrees, for a period of twelve months from the date of this
Agreement, that, without the prior written consent of Dames & Xxxxx, it will not
(i) acquire, offer to acquire or agree to acquire, directly or indirectly, by
purchase or otherwise, in excess of 5% of the outstanding voting securities of
Dames & Xxxxx or any direct or indirect rights to acquire any voting securities
of Dames & Xxxxx or any subsidiary thereof, (ii) make, or in any way
participate in, directly or indirectly, any "solicitation" of "proxies" (as such
terms are defined in the rules of the Securities Exchange Commission) to vote,
or seek to advise or influence any person or entity with respect to the voting
of, any voting securities of Dames & Xxxxx, (iii) make any public announcement
or reference with respect to, or submit a proposal for, or offer of (with or
without conditions) any extraordinary transaction involving Dames & Xxxxx or its
securities or assets, (iv) participate in any discussions or negotiations with
any third party regarding, or furnish any information to any third party,
regarding any such transaction, (v) form, join or in any way participate in a
"group" as defined in Section 13(d)(3) of the Exchange Act) in connection with
any of the foregoing; or (vi) make any request or proposal to amend or waive any
provision of this Agreement except in a non-public and confidential manner. The
provisions of this Section 5 shall terminate immediately and have no further
binding effect on URS, however, in the event that (a) any third party or "group"
(as defined above) unaffiliated with URS initiates a tender of exchange offer
for in excess of 25% of the outstanding voting securities of Dames & Xxxxx, (b)
Dames & Xxxxx enters into, or announces its intention to enter into, any
agreement to sell or dispose of 50% or more of its asserts to an unaffiliated
party or "group", or (c) Dames & Xxxxx enters into, or announces its intention
to enter into, any agreement providing for a merger, combination or similar
transaction as a result of which either (1) the stockholders of Dames & Xxxxx
immediately preceding such transaction would cease to hold in excess of 50% of
the voting securities of the surviving or resulting entity immediately following
such transaction or (2) the directors of Dames and Xxxxx immediately prior to
such transaction cease to constitute at least a majority of the directors of
Dames & Xxxxx immediately following such transaction. In addition,
notwithstanding the provisions of this Section 5, URS shall not be prohibited at
any time from acquiring, offering to acquire or announcing an intention to
acquire, in good faith, not less than 100% of the outstanding voting securities
of Dames & Xxxxx pursuant to an unsolicited tender offer, for cash, securities
or a combination of cash and securities, with a value per share of Dames & Xxxxx
common stock of not less than 143% of the closing price of such stock on April
14, 1999.
7. In the event that discussions relating to a possible Transaction cease
for any reason, each party shall (a) within ten (10) days return, and cause its
Representatives to return, to the other party all copies of any Confidential
Information received from the other party, (b) destroy all notes, compilations
and analyses with respect to, based upon or derived from such Confidential
Information, and confirm such destruction to the other party in writing, (c) not
make any other use of such Confidential Information, and (d) not provide such
Confidential Information to any other person or entity for any purpose, except
as required by law.
8. Unless and until this Agreement is terminated by mutual agreement, each
party hereto agrees to obtain the approval of the other party hereto prior to
issuing any press release, public statement or announcement regarding a possible
Transaction or the fact that the parties are engaged in discussions or have
exchanged information; provided, however, that notwithstanding anything herein
to the contrary, the provisions of this Section 8 shall not prohibit any party
hereto from making any press release, public statement or announcement if such
party believes, based on the advice of counsel, that it is required to do so
under any applicable law, rule or regulation, in which event such party shall
use its best efforts to provide the other party with at
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least 24 hours prior notice of such release, statement or announcement, and
shall promptly provide copies thereof to the other party.
9. In the event that either party or any of its Representatives is
required or becomes legally compelled (by oral questions, interrogatories,
request for information or documents, subpoena, regulatory inquiry, criminal or
civil investigative demand or similar process, or otherwise) to disclose any
Confidential Information of the other party, such party will provide the other
party with prompt written notice so that the other party may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Agreement. The other party shall promptly advise the first party of the
action it intends to take. In the event no such protective order or other
remedy is obtained, or that the other party waives compliance with the terms of
this Agreement, such party will furnish only that portion of the Confidential
Information which (based on the advice of counsel) is legally required, and will
exercise its best efforts to obtain confidential treatment for such Confidential
Information from the person, regulatory authority or other entity to whom it is
disclosed.
10. Each party acknowledges and agrees that, although each party has and
will endeavor to provide the other party only with such information as it
believes to be reliable, no party is making any representation or warranty as to
the accuracy or completeness of any such information, and no party shall have
any liability resulting from the use of any such information by the other party.
The parties agree that they are not entitled to rely on the accuracy or
completeness of any such information, and they will be entitled to rely solely
on such representations and warranties as may be included in any definitive
agreement they may reach with respect to a Transaction, subject to such
limitations and restrictions as any such definitive agreement may contain. Each
party agrees that unless and until a definitive agreement between URS and Dames
& Xxxxx with respect to a Transaction has been executed and delivered, neither
party will be under any legal obligation of any kind with respect to such a
Transaction by virtue of this Agreement or any other oral expression with
respect to such a Transaction by any of the directors, officers, agents,
employees or other Representatives of either party except for the matters agreed
upon in this Agreement. Each party further agrees that it shall have no
obligation to authorize or pursue with the other party or any other party any
Transaction, and understands that the other party has not, as of the date of
this Agreement, finally authorized any such Transaction.
11. Each party understands and agrees that, because of the unique nature
of the Confidential Information, URS, Dames & Xxxxx or third parties will suffer
immediate, irreparable harm in the event a party fails to comply with any of the
obligations in this Agreement and that monetary damages will be inadequate to
compensate the other party for such breach. Accordingly, each party agrees that
the other party will be entitled, in addition to any other remedies available to
it at law or in equity, to injunctive relief to enforce the terms of this
Agreement.
12. Each party acknowledges that it is aware, and will advise its
Representatives, that United States securities laws restrict, under certain
circumstances, persons who have material, non-public information concerning the
matters which are the subject matter of this Agreement from purchasing or
selling securities of a company to which such information relates or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell any
such securities.
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13. This Agreement sets forth the entire understanding and agreement of
the parties with respect to the subject matter hereof and supersedes all other
oral or written agreements, representations and understandings. In the event
that any provision hereof or any of the parties' obligations if found invalid or
unenforceable pursuant to judicial decree or decision, any such provision or
obligation shall be deemed and construed to extend only to the maximum permitted
by law, and the remainder of the Agreement shall remain valid. The
interpretation and performance of this Agreement shall be governed by the law of
the State of California. This Agreement may only be amended or modified in
writing signed in advance by authorized Representatives of both parties. In the
event of any dispute arising out of this Agreement, the prevailing party shall
recover its attorneys' fees and other court costs incurred in litigating or
otherwise settling or resolving such dispute. No failure or delay by a 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 further exercise thereof of the exercise of any other right, power and
privilege under this Agreement. Each party shall bear its own costs and
expenses (including the fees and expenses of its own professional advisors and
any broker's or finder's fees) incurred in connection with the matters
contemplated by this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
officers of each of the parties as of the date first above written.
DAMES & XXXXX GROUP URS CORPORATION,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxx Xxxx X. Xxxxxxxxx
Chairman of the Board Executive Vice President and
Chief Executive Officer Chief Financial Officer
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