EXHIBIT (C)(5)
STERLING SOFTWARE, INC.
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
March 16, 1999
Interlink Computer Sciences, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: A.J. Berkeley, President
Re: Potential Acquisition Transaction
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Gentlemen:
This letter is to confirm certain agreements we have reached regarding
the potential acquisition (the "Potential Acquisition") by Sterling Software,
Inc. ("Sterling Software") of Interlink Computer Sciences, Inc. ("Interlink").
As a material inducement to Sterling Software's continuation of negotiations
with Interlink with respect to the terms and conditions of the Potential
Acquisition, and in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Exclusivity Period. Upon the execution of this letter
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agreement and continuing until the earlier of (a) 6:00 p.m. California time on
March 25, 1999 and (b) the execution of a definitive agreement governing the
terms and conditions of the Potential Acquisition (such period, the "Exclusivity
Period"), Interlink shall, shall cause its subsidiaries to, and shall use
reasonable efforts to cause all of its or their affiliates, officers, directors,
employees, agents and representatives (including without limitation any
investment banker, financial advisor, attorney and accountant retained by
Interlink or any of its subsidiaries or affiliates) to, discontinue any
solicitation efforts, discussions or negotiations with respect to any
Acquisition Proposal (as hereinafter defined) with any person or entity other
than Sterling Software. During the Exclusivity Period, Interlink shall not, and
shall not authorize or permit any of its subsidiaries or any of its or their
affiliates, officers, directors, employees, agents or representatives (including
without limitations any investment banker, financial advisor, attorney or
accountant retained by Interlink or any of its subsidiaries or affiliates) to,
directly or indirectly, initiate, solicit or intentionally encourage (including
by way of furnishing information or assistance), or take any other action to
facilitate, any inquiries, any expression of interest or the making of any
proposal that constitutes, or would reasonably be expected to lead to, an
Acquisition Proposal, or enter into or maintain or continue discussions or
negotiate with any person in furtherance of such inquiries or to seek to obtain
an Acquisition Proposal or agree to or endorse any Acquisition Proposal.
Interlink Computer Sciences, Inc.
March 16, 1999
Page 2
Interlink shall notify Sterling Software immediately if any such inquiries,
expressions of interest or proposals are received by, any such information is
requested from, or any such negotiations or discussions are sought to be
initiated or continued with Interlink or any of its subsidiaries, affiliates,
agents or representatives; provided, however, that Interlink's obligation under
this and the immediately succeeding two sentences shall only be applicable to
such of the foregoing as (i) involve any items of non-cash consideration other
than securities for which there is an existing public market ("Marketable
Securities"), or (ii) involve aggregate consideration consisting of cash and/or
Marketable Securities in exchange for all of Interlink's outstanding shares of
common stock, such consideration having a value per share of $7.00 or greater
(each, a "Superior Proposal"). Such notice shall include the identity of the
party making, and the terms of (including delivery of copies thereof), any
inquiry or proposal relating to a Superior Proposal. Interlink will keep
Sterling Software fully informed of the status of, and any modification to, any
Superior Proposal. For purposes of this letter agreement, "Acquisition Proposal"
means an inquiry, offer, proposal or other indication of interest (other than by
Sterling Software in connection with the Potential Acquisition) regarding any of
the following matters involving Interlink: (i) any merger, consolidation, share
exchange, tender or exchange offer, recapitalization, business combination or
other similar transaction immediately following the consummation of which, the
stockholders of Interlink immediately prior thereto would hold less than 80% of
the voting stock of the surviving or resulting entity; (ii) any acquisitions of
voting stock or other securities issued by Interlink or any of its subsidiaries
representing more than 80% of the outstanding voting stock of Interlink or any
of its subsidiaries; (iii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition of all or substantially all of the assets of Interlink and
its subsidiaries, taken as a whole, in a single transaction or series of related
transactions; or (iv) any agreement in principle or other agreement to engage in
any of the foregoing.
2. Certain Obligations Only on Definitive Agreement. No agreement
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providing for the Potential Acquisition shall be deemed to exist unless and
until definitive documentation providing therefor has been executed and
delivered by Sterling Software and Interlink (and/or any other appropriate party
or parties thereto). Unless and until such definitive documentation concerning a
Potential Acquisition has been executed, neither Sterling Software nor any of
our representatives will have any liability to Interlink with respect to a
Potential Acquisition, whether by virtue of this letter agreement or otherwise.
3. Non-Solicitation of Employees. Sterling Software agrees that for
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a period of one year from the date of this letter agreement, it will not,
directly or
Interlink Computer Sciences, Inc.
March 16, 1999
Page 3
indirectly, solicit for employment or attempt to hire or recruit any employee of
Interlink (or any subsidiary thereof) with whom Sterling Software has had
contact or who became known to Sterling Software in connection with Sterling
Software's consideration of the Potential Acquisition. Notwithstanding anything
to the contrary herein, Sterling Software shall not be deemed to have breached
or violated this paragraph 3 solely (a) as a result of generic employment
advertising by Sterling Software (including, without limitation, "open position"
and similar listings in Sterling Software's various World Wide Web pages), (b)
as a result of the efforts of an executive recruitment or similar firm generally
engaged to recruit employees for Sterling Software (without targeting of
Interlink or its specific employees) or (c) if any employee of Interlink (or any
subsidiary thereof) approaches and obtains employment with Sterling Software
after the date hereof solely as a result of any advertising or recruitment
effort contemplated in clause (a) or (b) above.
4. General Provisions. No failure or delay in exercising any right
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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. This letter agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns,
although neither party may assign any of its rights or obligations hereunder
without the prior written consent of the other party, which consent may be
withheld in the sole and absolute discretion of such other party. Money damages
would not be a sufficient remedy for any breach or violation of the terms of
this letter agreement and, accordingly, Sterling Software or Interlink, as the
case may be, shall be entitled to specific performance and injunctive relief as
remedies for any breach or violation, in addition to all other remedies
available at law or equity. This letter agreement may not be amended except by
virtue of a written instrument executed by both of the parties hereto. This
letter agreement shall be governed by and construed in accordance with the laws
of the State of Delaware, without giving effect to the principles of conflict of
laws thereof.
Interlink Computer Sciences, Inc.
March 16, 1999
Page 4
Please sign and return one copy of this letter agreement to evidence
your acceptance of and agreement to the foregoing, whereupon this letter
agreement will become the binding obligation of each of the undersigned subject
to the terms hereof.
Very truly yours,
STERLING SOFTWARE, INC.
By: /s/ Xxx X. XxXxxxxxx, Xx.
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Xxx X. XxXxxxxxx, Xx.
Senior Vice President and
General Counsel
Accepted and agreed to as of
the date first written above:
INTERLINK COMPUTER SCIENCES, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Vice President and Chief Financial
Officer
