1
Exhibit (c)(3)
[LUMEN TECHNOLOGIES, INC. LETTERHEAD]
June 9, 1998
EG&G, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Reciprocal Confidentiality Agreement
Dear Mr. Xxxxxxxxx:
In connection with the consideration by Xxxxx (as defined below) and EGG (as
defined below) of a possible transaction (the "Transaction") involving Lumen
and EGG, Lumen and EGG will each provide the other with confidential
information. In consideration of the mutual covenants contained in this
agreement, each party agrees as follows:
1. Definitions
(a) "Confidential Information" means all information (whether
written, oral or in any other form and whether prepared by the
Disclosing Party, any of its representatives or otherwise), other
than Exempt Information, which is provided by the Disclosing
Party or any of its representatives to the Recipient or any of
its representatives before the end of the Disclosure Period in
connection with the Recipient's consideration of a possible
Transaction. For purposes of this agreement, Confidential
Information also includes all summaries, notes, studies,
interpretations or other materials prepared by the Recipient or
any of its Permitted Users (as defined below) that contain or are
based upon, in whole or in part, any of the information referred
to in the preceding sentence (the "Notes").
(b) "Disclosure Period" means the period beginning on the date
hereof and ending on the first anniversary of the date of this
letter, provided that the
1
2
Disclosure Period may be terminated earlier by mutual agreement of the
parties or upon the written request of either party.
(c) "EXEMPT INFORMATION" means information which (i) the Recipient can prove or
document it possessed on a non-confidential basis before the Disclosing
Party disclosed it to the Recipient under this agreement and where the
provider of such information to the Recipient was not known by the
Recipient to be subject to any confidentiality obligation to any person
with respect to such information, (ii) is or becomes generally available
to the public other than as a result of disclosure by the Recipient or any
of its Permitted Users in violation of this agreement; or (iii) the
Recipient obtains from a third party on a non-confidential basis (to the
Recipient's knowledge) that did not obtain the information directly or
indirectly from the Disclosing Party and was not known by the Recipient to
be subject to any confidentiality obligation to any person with respect to
such information.
(d) "PERMITTED USE" means the evaluation of possible Transaction between Lumen
and EGG.
(e) "PERMITTED USER" means an individual who (i) is a director, officer,
employee, agent, advisor or consultant of or to the Recipient or any of
its Affiliates; (ii) has agreed to be bound by the terms of this agreement
as if he or she were a "RECIPIENT" hereunder and a party hereto; and (iii)
has a need to know the Confidential Information in connection with the
Permitted Use. In addition, with respect to Confidential Information that
the Disclosing Party believes is unusually sensitive due to commercial,
legal or other factors, as a condition to the Disclosing Party's provision
of such information to the Recipient, the Disclosing Party and the
Recipient will mutually agree upon a limited number of specific
individuals to receive such information on behalf of the Recipient, and,
with respect to such information (and related Notes), only such specified
individuals shall be Permitted Users.
(f) "EGG" means EG&G, Inc. and its Affiliates.
(g) "LUMEN" means Lumen Technologies, Inc. and its Affiliates.
(h) "AFFILIATES" means, with respect to each party, the legal entities that
control, are controlled by, or are under common control with such party.
(i) "RECIPIENT" means the party to which (or to the representatives of which)
Confidential Information is disclosed by the other party.
(j) "DISCLOSING PARTY" means the party which discloses (or on whose behalf
information is disclosed) Confidential Information to the other party.
2
3
2. Treatment of Confidential Information
(a) The Recipient will treat Confidential Information as confidential
and proprietary, and the Recipient will safeguard its confidential
and proprietary nature with at least the same degree of care as the
Recipient treats its own confidential or proprietary information. In
addition, the Recipient will comply with the other provisions of
this agreement and take or abstain from taking various actions as
herein set forth.
(b) The Recipient and its Permitted Users may use, copy and make
extracts of Confidential Information, or otherwise use, make and
copy Notes, only in connection with the Permitted Use, and for no
other purpose. Without limiting the generality of the foregoing, the
Recipient and its Permitted Users shall not use Confidential
Information to divert or attempt to divert any business of the
Disclosing Party.
(c) The Recipient will not disclose Confidential Information to, or
permit it to be accessed by, any person except Permitted Users who
have a need to know it in connection with the Permitted Use. The
Disclosing Party may waive the restrictions of this paragraph 2(c)
on a case-by-case basis to provide for specific disclosures to
specific third parties. The waiver must be in writing signed by an
officer of the Disclosing Party. The Recipient will ensure that each
of its Permitted Users complies fully with the provisions of this
agreement.
(d) Neither party will disclose that discussions between the parties are
taking place concerning a possible Transaction, or any aspect of, or
any other matter relating to, such discussions, to any third party
without the other's prior written consent; provided, that, after
consultation with the other party (to the extent such consultation
is reasonably practicable), each party may disclose such information
to the extent required by law or by agreement with a national
securities exchange, in the opinion of such party's legal counsel.
(e) At the end of the Disclosure Period, or earlier if the Disclosing
Party so requests, the Recipient will (i) promptly return to the
Disclosing Party all Confidential Information provided by or on
behalf of the Disclosing Party to the Recipient (or any of its
Permitted Users) and all Notes (including, without limitation, all
Notes created or prepared by its Permitted Users) and, except as set
forth in paragraph 2(f), the Recipient will destroy all copies of
Confidential Information and all copies of all Notes then in the
Recipient's possession or under the Recipient's control (including,
without
3
4
limitation, all copies and Notes provided to, or made by, any
Permitted User) and (ii) provide the Disclosing Party with a written
statement of an officer of the Recipient indication that the Recipient
has complied with the requirements of this paragraph 2(e).
(f) Notwithstanding paragraph 2(e), the Recipient's outside counsel may
retain a single copy of Confidential Information and Notes for the
sole purpose of ascertaining the Recipient's ongoing rights and
responsibilities respecting such information.
(g) In the event that the Recipient or any of its Permitted Users becomes
legally compelled pursuant to judicial or administrative subpoena or
process of other legal obligation to disclose any Confidential
Information supplied to it or any of its Permitted Users or any Notes,
the Recipient (or such Permitted User) shall provide the Disclosing
Party with prompt notice of any such subpoena, process or obligation,
so that the Disclosing Party may seek an appropriate protective order
and/or waive the Recipient's compliance with the provisions of this
agreement. If in the absence of a protective order or the receipt of a
waiver hereunder, the Recipient or such Permitted User is nonetheless,
in the opinion of its legal counsel, compelled to disclose any such
Confidential Information or else stand liable for contempt or suffer
other censure or penalty, notwithstanding any other provision of this
agreement to the contrary, the Recipient or such Permitted User may
disclose only that portion of the Confidential Information that, in
the opinion of its legal counsel, it is legally required to disclose
without liability hereunder.
3. Other Matters
(a) Each party represents and warrants to the other that it has the legal
power and authority to enter into and perform under this agreement and
that such performance (including, without limitation, the delivery of
Confidential Information hereunder) will not violate the rights, or
require the consent, of any third party.
(b) Neither this agreement, nor either party's performance under it, nor
any other written or oral agreement or expression with respect to a
possible Transaction, will (i) transfer to the Recipient, or create in
the Recipient, any proprietary right, title, interest or claim in or
to any Confidential Information; (ii) obligate either party to enter
into any other agreement or impose any legal obligation on Lumen or
EGG with respect to any Transaction (it being understood that no such
obligations will arise unless and until a definitive agreement with
respect to a Transaction is approved by Xxxxx and EGG and executed and
delivered by such parties); or (iii) prohibit either party from
entering into any other agreement if the
4
5
execution and performance of such agreement would not violate such party's
obligations hereunder.
(c) Subject to the earlier termination of obligations under this agreement,
the Recipient's obligations under this agreement shall terminate
automatically on the third (3rd) anniversary of the date of this agreement.
(d) This agreement sets forth the parties' entire understanding about its
subject matter and supersedes any other agreement or understanding, whether
verbal or in writing, between the parties about its subject matter. Neither
party can assign, amend, waive or terminate any part of this agreement
except by writing signed by both parties.
(e) This agreement shall be governed by, and construed and enforced in
accordance with, the law of the State of New York, excluding its conflict
of law rules.
(f) Lumen and EGG acknowledge that certain information may not be provided to
the other party unless and until the parties are engaged in more definitive
discussions concerning the Transaction, it being understood that, as set
forth in paragraph 3(b), neither party is obligated to pursue any such
discussions or Transaction. Each party acknowledges that, except as
specifically proved herein, neither party has made any promise to the
other, express or implied, upon which either is entitled to rely in any
way, and, except as specifically provided herein, the parties specifically
waive and disclaim any reliance, dependence or action based on any written
or verbal statement or promise made by either party to the other. Without
limiting the generality of the foregoing, it is understood that none of
Lumen, EGG or any of their Permitted Users (i) has made any representation
or warranty, express or implied, with respect to the accuracy or
completeness of the Confidential Information or any statement, fact,
estimate, projection, assumption or other information contained therein or
(ii) will have any liability whatsoever to any other person relating to or
resulting from the use of any Confidential Information or any errors
therein or omissions therefrom.
(g) Each of Lumen and EGG agrees that neither it nor any of its Affiliates will
solicit to employ any officers or employees employed in any of the current
business of the other party and its Affiliates with whom the soliciting
party or any of its representatives has had contact or who were otherwise
identified to the soliciting party or any of its representatives during the
period of its evaluation of a possible Transaction for a period of two (2)
years following any termination of this agreement, except through general
solicitations (through employee search firms or otherwise) not targeted to
officers or employees of the other party or its Affiliates, it being
understood that responding to unsolicited indications of interest from such
5
6
officers or employees will not be deemed solicitation for purposes of
this paragraph 3(g).
(h) Each of Lumen and EGG acknowledge that they are aware of the
securities laws of the United States relating to the use of material,
non-public information.
(i) The parties agree that money damages would not be sufficient remedy
for any breach of this agreement by either party, and that in addition
to all other remedies each party shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for
any such breach by the other. Each party further agrees to waive, and
to use its best efforts to cause its Permitted Users to waive, any
requirement for the securing or posting of any bond in connection
with such remedy. In the event of litigation relating to this
agreement, if a court of competent jurisdiction determines that either
party or any of its Permitted Users has breached this agreement, the
breaching party shall be liable and pay to the other party the
reasonable legal fees incurred by the other party in connection with
such litigation.
If the foregoing terms are acceptable, please return the enclosed copy of
this agreement signed by a duly authorized officer.
Very truly yours,
LUMEN TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Signature
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman
ACKNOWLEDGED AND AGREED:
E,G&G, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Signature
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
6
