EXHIBIT (d)(3)
June 14, 2004
PERSONAL AND CONFIDENTIAL
Xxxx Xxxxxxx
Affiliated Computer Services Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Xxxx:
Xxxxxxx Xxxxx & Company, L.L.C. ("Xxxxx") understands that you have
requested information regarding PROJECT WOLF (the "Company") for the purposes of
evaluating a possible transaction involving the Company (a "Transaction"). It is
understood and agreed that this agreement does not obligate the Company to enter
into any Transaction or any agreement relating to a Transaction. To induce the
Company to furnish information to you, you hereby agree as follows:
1. As used herein:
"Act" means the Securities Exchange Act of 1934, as amended.
"Affiliate" means, with respect to any Person, any other Person that (i)
directly or indirectly controls such Person, (ii) directly or indirectly is
controlled by such Person or (iii) is under direct or indirect common control
with such Person;
"Information" means information regarding the Company or any of its
Affiliates or their respective assets or businesses which is furnished to you,
directly or indirectly, by the Company or its Representatives (including,
without limitation, Xxxxx), and all notes, analyses, compilations, studies,
interpretations or other documents prepared by you or your Representatives which
contain, reflect or are based upon, in whole or in part, the information
furnished to you or your Representatives pursuant hereto;
"Person" means any corporation, limited liability company, partnership,
group, individual or other entity, the media and any government or political
subdivision, agency or instrumentality of the government;
"Representatives" means attorneys, accountants, consultants, financial
advisors, and any other advisors retained by the Company or you, as the case may
be; and
Xxxx Xxxxxxx -2- June 14, 2004
"Restricted Period" means the period commencing on the date
hereof and ending at the earliest of (i) two years after the date
hereof or (ii) the date a Transaction involving you and the Company is
consummated.
2. All Information will be kept confidential by you, except that
you may disclose or make available Information to your directors, officers and
employees and to your Representatives for the exclusive purpose of assisting you
in the evaluation of a possible Transaction, all of whom shall be specifically
informed by you of the confidential character of such Information and that by
receiving the Information they are agreeing to be bound by the terms of this
letter agreement relating to the confidential treatment of such Information. You
will not use, or permit any of your Representatives to use, any of the
Information for any purpose other than the evaluation of a possible Transaction,
and you will not make any Information available to any Person for any other
purpose whatsoever. You shall be responsible for any breach of this letter
agreement by any of your Representatives and you agree, at your sole expense, to
take all reasonable measures (including but not limited to court proceedings) to
restrain your Representatives from prohibited or unauthorized disclosure or use
of the Information.
3. You hereby acknowledge that you are aware (and that prior to
the disclosure of any Information to any Person pursuant to Paragraph 2 such
person will be advised) that the United States securities laws prohibit any
Person who has material non-public information about a company from purchasing
or selling securities of such company 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 such securities. In the event that you
disclose any Information to any Person, whether or not such disclosure is
permitted under Paragraph 2, you shall be liable to the Company for any failure
by such Person to treat such Information in the same manner as you are obligated
to treat such Information under the terms of this agreement.
4. (a) Unless specifically requested in writing in advance by the
Company's Board of Directors, you will not at any time during the Restricted
Period (and you will not at any time during the Restricted Period assist or
encourage others to):
(i) acquire or agree, offer, seek or propose to acquire (or
directly or indirectly request permission to do so), directly or
indirectly, alone or in concert with any other Person, by
purchase or otherwise, any ownership, including, but not limited
to, beneficial ownership as defined in Rule 13d-3 under the Act,
of any assets, businesses or securities of the Company or any
subsidiary thereof, or any rights or options to acquire such
ownership (including from any third party);
(ii) solicit proxies (as such terms are defined in Rule 14a-1
under the Act), whether or not such solicitation is exempt under
Rule 14a-2 under the Act, with respect to any matter from holders
of any shares of common stock of the Company ("Stock") or any
securities convertible into or exchangeable for or exercisable
(whether currently or upon the occurrence of any contingency) for
the purchase of Stock (the Stock and such other securities being
hereinafter collectively called the "Voting Securities"), or make
any communication exempted from the definition of solicitation
by Rule 14a-1(1)(2)(iv) under the Act;
Xxxx Xxxxxxx -3- June 14, 2004
(iii) initiate, or induce or attempt to induce any other Person,
entity or group (as defined in Section 13(d)(3) of the Act) to
initiate, any stockholder proposal or tender offer for any securities
of the Company or any subsidiary thereof or the convening of a
stockholders' meeting of the Company or any subsidiary thereof;
(iv) otherwise seek or propose (or request permission to propose)
to influence or control the management or policies of the Company or
any subsidiary thereof;
(v) enter into any discussions, negotiations, arrangements or
understandings with any other Person with respect to any matter
described in the foregoing subparagraphs (i) through (iv);
(vi) request the Company (or its directors, officers, employees
or agents), directly or indirectly, to amend or waive any provision
of this Paragraph 4;
(vii) take any action inconsistent with any of the foregoing
subparagraphs (i) through (v); or
(viii) take any action with respect to any of the matters
described in this Paragraph 4 that requires public disclosure.
(b) It is understood that Xxxxx, as the authorized Representative of
the Company, will coordinate the due diligence process. All (i) communications
regarding this possible Transaction, (ii) requests for additional information,
(iii) requests for facility tours and management meetings, and (iv) discussions
or questions regarding procedures, must be submitted or directed to Xxxxx.
5. If at any time during the Restricted Period you are
approached by any Person concerning your or their participation in a transaction
involving any of the assets, businesses or securities of the Company or any
subsidiary thereof, you will promptly inform Xxxxx of the nature of such contact
and the parties thereto.
6. Except with the prior written approval of the Company or
Xxxxx on behalf the Company, you will not disclose, and you will not permit your
Representatives to disclose, to any Person other than the persons described in
Paragraph 2, the fact that you are engaged in discussions with the Company
regarding a possible Transaction, the fact that the Information has been made
available to you, that you have prepared, or had prepared on your behalf,
Information or that you have inspected any portion of the Information or the
fact that you are subject to any of the restrictions described in Paragraph 4;
provided, that you may make such disclosure if you have received the written
opinion of your outside counsel that such disclosure must be made by you in
order that you not commit a violation of law.
7. In the event that you or any of your Representatives are
requested or required in any proceeding to disclose any Information received or
prepared by you or on your behalf or any matter subject to Paragraph 6, you
will give Xxxxx notice as soon as possible of such request so that the Company
may seek an appropriate protective order. If, in the absence of a protective
order, you or your Representatives are nonetheless in the opinion of counsel
legally
Xxxx Xxxxxxx - 4 - June 14, 2004
compelled to disclose any such Information or matter, you or your Representative
may disclose such Information or matter without liability hereunder, provided
that (i) you disclose in such proceeding only that portion of the Information
which such counsel advises you is legally required to be disclosed and (ii) you
exercise your best efforts to preserve the confidentiality of the Information,
including, without limitation, by cooperating with the Company to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Information in such proceeding.
8. The restrictions with respect to Information set forth in
Paragraph 2 shall not apply to any Information which you demonstrate (i) is on
the date hereof of hereafter becomes generally available to the public other
than as a result of a disclosure, directly or indirectly, by you or your
Representatives or (ii) was available to you on a nonconfidential basis prior to
is disclosure to you by the Company or its Representatives or becomes available
to you on a nonconfidential basis, in each case from a source other than the
company or its Representatives, which source was not itself bound by
confidentiality agreement with the Company or its Representatives or any other
contractual, legal or fiduciary obligation to the Company and had not received
such information, directly or indirectly from a Person so bound.
9. Neither the Company nor Xxxxx makes any representation or
warranty as to the accuracy or completeness of the Information provided to you.
Neither the Company nor any of its Representatives (including, without
limitation, Xxxxx) shall have any liability resulting from the use of the
Information by you or any of your Representatives. Only those representations or
warranties which are made in a final definitive agreement regarding the possible
Transaction when, as and if executed, and subject to such limitations and
restrictions as may be specified therein, will have any legal effect.
Unless and until a final definitive agreement regarding a Transaction
between the Company and you has been executed and delivered, neither Company nor
you will be under any legal obligation of any kind whatsoever with respect to a
possible Transaction by virtue of this letter agreement except for the matters
specifically agreed to herein.
10. If you decide that you do not wish to proceed with possible
Transaction, you will promptly inform Xxxxx of that decision. In that case, or
at any time upon the request of the Company or Xxxxx, on behalf of the Company,
for any reason you will promptly redeliver to Xxxxx or destroy all copies of
documents containing Information and will promptly destroy all memoranda, notes
and other writings prepared by you or by any Person referred to in Paragraph 2
based on such Information. Notwithstanding the return or destruction of the
Information, you and your Representatives will continue to be bound by your
obligations of confidentiality and other obligations hereunder for the duration
of the Restricted Period.
11. You agree that during the Restricted Period you will not,
directly or indirectly, solicit for employment any employee of the Company;
provided, however, that the foregoing provision shall not apply to such persons
who initiate contact with you regarding potential employment or who are no
longer employed by the Company at the time of solicitation nor shall it
prohibit solicitation by you through general solicitations of employment in a
newspaper or similar media conducted by or on behalf of you.
Xxxx Xxxxxxx -5- June 14, 2004
12. You shall cause each of your Affiliates to comply with the terms
of Paragraphs 2, 3, 4, 5, 6, 7, 8, 10 and 11 (construing such Paragraphs for
such purposes to refer also to such Affiliates in each instance where there is
a reference to you).
13. You acknowledge that irreparable damage would occur to the
Company in the event any of the provisions of this agreement were not performed
in accordance with their specific terms or were otherwise breached.
Accordingly, the Company shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States of America or any state thereof, in addition
to any remedy to which the Company may be entitled at law or in equity.
14. If any term or provision of this letter agreement or any
application hereof shall be invalid or unenforceable, the remainder of this
agreement and any other application of such term or provision shall not be
affected thereby. It is understood and agreed that no failure or delay by the
Company in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder. In the event of litigation relating to this letter
agreement, if a court of competent jurisdiction determines that you or any of
your Representatives have breached this letter agreement, then you shall be
liable and pay to the Company, as the case may be, the reasonable legal fees
incurred by such parties in connection with such litigation, including any
appeal therefrom.
15. This letter agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but such counterparts shall constitute one and the same instrument.
16. This agreement contains the entire understanding of the parties
hereto with respect to the matters covered hereby and may be amended only by an
agreement in writing executed by the Company and you.
17. The Company reserves the right to assign all of its rights,
powers and privileges under this letter agreement (including, without
limitation, the right to enforce all of the terms of this letter agreement) to
any person who enters into the Transactions contemplated by this letter
agreement. This letter agreement shall be binding upon, inure to the benefit of
and be enforceable by our respective successors and assigns.
18. The terms of this letter agreement shall expire at the end of the
Restricted Period.
19. This letter agreement shall be governed by and construed in
accordance with the internal laws (as opposed to conflict of law provisions) of
the State of Illinois.
Xxxx Xxxxxxx -6- June 14, 2004
If the foregoing correctly sets forth our agreement as to the matters
set forth herein, please confirm our agreement by executing and returning a
copy of this letter agreement to the undersigned.
Very truly yours,
PROJECT WOLF
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxxxx Xxxxx & Company, L.L.C.
As Agent for PROJECT WOLF
Agreed and Accepted
As of date listed above
AFFILIATED COMPUTER SERVICES INC.
By: /s/ Xxxx X. Xxxxxxx
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Its: Executive Vice President
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