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CONFIDENTIAL
Exhibit(d)(7)
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement dated February 13, 2001 ("Confidentiality
Agreement") is hereby entered into by and between Compaq Computer Corporation
("Compaq"), a Delaware corporation, and Proxicom, Inc. ("Proxicom"), a Delaware
corporation. In connection with a possible transaction (any such possible
transaction, a "Transaction") involving Compaq and Proxicom (collectively "the
parties" and each individually a "party"), each party hereto is prepared to make
available to the other party certain information concerning its business,
financial condition, operations, assets and liabilities. As a condition to such
information being furnished by either party to the other and to the other's
directors, officers, employees, agents and advisors (including without
limitation attorneys, accountants, consultants and financial advisors)
(collectively, "Representatives"), the receiving party agrees to treat any
information concerning the disclosing party (whether prepared by the disclosing
party, its advisors, or otherwise and irrespective of the form of communication)
that is hereunder furnished to the receiving party or to such receiving party's
Representatives now or in the future by or on behalf of the disclosing party
(herein collectively referred to as the "Evaluation Material") in accordance
with the provisions of this Confidentiality Agreement.
A disclosing party's "Evaluation Material" also shall be deemed to include
all notes, analyses, compilations, extracts, studies, interpretations or other
documents prepared by the receiving party or the receiving party's
Representatives that contain, reflect or are based upon, in whole or in part,
the Evaluation Material of the disclosing party furnished to the receiving party
or the receiving party's Representatives pursuant hereto. A disclosing party's
"Evaluation Material" does not include information that (a) is or becomes
generally available to the public other than as a result of a prohibited
disclosure by the receiving party or the receiving party's Representatives, or
(b) was within the receiving party's or the receiving party's Representatives'
possession prior to its being furnished to the receiving party or the receiving
party's Representatives by or on behalf of the disclosing party pursuant hereto,
provided that the source of such information was not known by the receiving
party or the receiving party's Representatives to be bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, the disclosing party with respect to such information, or
(c) becomes available to the receiving party or the receiving party's
Representatives on a non-confidential basis from a source other than the
disclosing party or the disclosing party's Representatives, provided that such
source is not known by the receiving party or the receiving party's
Representatives to be bound by a confidentiality agreement with, or other
contractual, legal, or fiduciary obligation of confidentiality to, the
disclosing party with respect to such information, or (d) is developed by the
receiving party independently of and without reference to the Evaluation
Material of the disclosing party.
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CONFIDENTIAL
Each receiving party hereby agrees that the disclosing party's Evaluation
Material will be used solely for the purpose of evaluating a Transaction and not
in any way to the detriment of the disclosing party, that such Evaluation
Material will be kept confidential by the receiving party and the receiving
party's Representatives for one year from the date hereof, and that the
receiving party and the receiving party's Representatives will not disclose any
of such Evaluation Material during such period in any manner whatsoever;
provided, however, that (a) any of such Evaluation Material may be disclosed to
the receiving party's Representatives who need to know such Evaluation Material
for the purpose of evaluating a Transaction (it being understood that such
Representatives shall be informed by the receiving party of the confidential
nature of such Evaluation Material and shall be directed by the receiving party
to treat such Evaluation Material confidentially), and (b) any disclosure of
such Evaluation Material may be made to which such disclosing party previously
consents in writing. Each party agrees, at its sole expense, to take all
reasonable measures to restrain its Representatives from prohibited or
unauthorized disclosure or use of the Evaluation Material of the other party. In
any event, each party shall be responsible for any breach of the terms of this
Confidentiality Agreement by its Representatives.
In addition, each party agrees that, with the prior written consent of the
other, it will not, and it will direct its Representatives not to, disclose to
any person the fact that the Evaluation Material of the other party has been
made available to it, that discussions, negotiations or communications may be or
are taking place concerning a Transaction, or any of the terms, conditions or
other facts with respect to a Transaction, including the status thereof, unless
in the opinion of its counsel (including inhouse counsel) disclosure is required
to be made under any applicable law or regulation, to or by any authorized
administrative or governmental agency or pursuant to applicable requirements of
any listing agreement with or the rules of any securities exchange or similar
regulatory body, provided that if either party proposes to make any disclosure
based upon the opinion of its counsel it will advise and consult with the other
party prior to such disclosure concerning the information it proposes to
disclose. The term "person" as used in this Confidentiality Agreement will be
interpreted broadly to include, without limitation, any individual, corporation,
partnership, or other entity.
In the event that either party or any of its Representatives are requested
or required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to disclose
any Evaluation Material of the other party supplied to it or its
Representatives in the course of its dealings with the disclosing party or its
Representatives, the receiving party will provide the disclosing party with
prompt notice of each such request or requirement so that the disclosing party
may seek an appropriate protective order and/or waive compliance by the
receiving party with the provisions of this Confidentiality Agreement. In the
absence of such a protective order or waiver, the receiving party or its
Representatives are permitted to disclose that portion (and only that portion)
of the disclosing party's Evaluation Material that the receiving party or its
Representatives is legally compelled to disclose. In any such event, each party
will use its reasonable efforts to ensure that all Evaluation Material of the
other party that is so disclosed will be accorded confidential treatment.
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CONFIDENTIAL
Each party hereby acknowledges that it is aware (and that its
Representatives who are apprised of the matters that are the subject of this
Confidentiality Agreement have been, or will be, advised by it) that the United
States securities laws prohibit any person who has received from an issuer
material non-public information concerning the matters that are the subject of
this Confidentiality Agreement from purchasing or selling securities of such
issuer 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.
If either party decides that it does not wish to proceed with a
Transaction with the other party, it will promptly inform the other party of
that decision in writing. In that case, or at any time upon the written request
of either party for any reason, each party will promptly deliver to the other
all Evaluation Material of the other (and all copies thereof) furnished thereto
or to any of such party's Representatives by or on behalf of the disclosing
party pursuant hereto. In the event of such a decision or request, all other
Evaluation Material of the disclosing party prepared by the receiving party or
any of the receiving party's Representatives shall be destroyed (with such
destruction certified in writing by the receiving party to the best of its
knowledge after due inquiry) and no copy thereof shall be retained.
Notwithstanding the return or destruction of a disclosing party's Evaluation
Material, the receiving party and its Representatives will continue to be bound
by the receiving party's obligations of confidentiality and other obligations
hereunder.
Each party understands and acknowledges that none of the other party, its
representatives (including, without limitation, the other party's financial
advisor or any of the other party's directors, officers, employees, advisors or
agents) or its securityholders, herein make any representation or warranty,
express or implied, as to the accuracy or completeness of its Evaluation
Material. Each party agrees that none of the other party, its representatives
(including, without limitation, the other party's financial advisor or any of
the other party's directors, officers, employees, advisors or agents) or its
securityholders, herein shall have any liability to it or to any of its
Representatives relating to or resulting from the use of the disclosing party's
Evaluation Material or any errors therein or omissions therefrom. Only those
representations or warranties or other provisions that are contained in a final
definitive agreement regarding any Transaction (a "Definitive Agreement"), when,
as, and if executed and delivered, and subject to such limitations, restrictions
and terms as may be specified therein, will have any legal effect.
Each party agrees that, for a period of one year from the date hereof,
neither it nor any of its wholly owned subsidiaries will solicit for
employment, directly or indirectly, any member of the other party's senior
management (defined to include any employee holding the position of Vice
President or any greater position within either party's organization) with whom
it first had contact, or who was specifically identified to it, during the
period of its evaluation of the Transaction; provided, however, that this
paragraph will not prevent either party from employing any person who contacts
such party on his or her own initiative without any direct or indirect
solicitation by or encouragement from such party. For purposes of this
paragraph, "solicit for
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CONFIDENTIAL
employment" shall not be deemed to include any general solicitations of
employment by one party not specifically directed towards employees of the other
party. To the extent that there has been any prohibited contact by either party
with the senior management of the other party before the date of this
Confidentiality Agreement, it is agreed that such contact will not constitute a
breach of this paragraph. To the extent that there is any prohibited contact by
either party with the senior management of the other party on or after the date
of this Confidentiality Agreement, it is agreed that such contact will not
constitute a breach of this paragraph, provided that such contact is made
without the knowledge of this paragraph. Upon being advised of any such
prohibited contact(s) occurring before or after the date of this Confidentiality
Agreement, the notified party will investigate and, if confirmed, take
appropriate steps to terminate any such solicitation(s).
No failure or delay 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
right, power or privilege hereunder.
Each party understands and agrees that no agreement providing for a
Transaction shall be deemed to exist between it and the other party, unless and
until a Definitive Agreement has been fully executed and delivered, and each
party hereby waives, in advance, any claims (including, without limitation,
breach of contract) in connection with a Transaction unless and until it and the
other party shall have entered into a Definitive Agreement. Each party also
agrees that unless and until a Definitive Agreement regarding a Transaction has
been fully executed and delivered, neither it nor the other party will be under
any legal obligation of any kind whatsoever with respect to such a Transaction
by virtue of this Confidentiality Agreement or any other written or oral
expression with respect to such Transaction, except, in the case of this
Confidentiality Agreement, for the matters specifically and expressly agreed to
herein. Each party reserves the right, in its sole discretion, to reject any and
all proposals made by the other party or any of the other party's
Representatives with regard to a Transaction, and to terminate discussions,
negotiations or communications with the other party at any time. Neither this
paragraph nor any other provision in this Confidentiality Agreement shall be
waived or amended except by written consent of both parties, which consent shall
specifically refer to this paragraph (or such provision) and explicitly make
such waiver or amendment.
It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this Confidentiality Agreement by either
party or any of either party's Representatives and that both parties shall be
entitled to equitable relief, including injunction and specific performance, as
a remedy for any such breach by the other. Such remedies shall not be deemed to
be the exclusive remedies for a breach by any party of this Confidentiality
Agreement but shall be in addition to all other remedies available at law or in
equity to the other party.
To the extent that any Evaluation Material may include materials subject to
the attorney-client privilege, work product doctrine or any other applicable
privilege
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CONFIDENTIAL
concerning pending or threatened legal proceedings or governmental
investigations, the parties understand and agree that they have a commonality
of interest with respect to such matters and it is their respective desire,
intention and mutual understanding that the sharing of such material is not
intended to, and shall not, waive or diminish in any way the confidentiality of
such material or its continued protection under the attorney-client privilege,
work product doctrine or other applicable privilege. All Evaluation Material
that is entitled to protection under the attorney-client privilege, work
product doctrine and other applicable privilege shall remain entitled to such
protection under these privileges, this Confidentiality Agreement, and under
the joint defense doctrine.
This Confidentiality Agreement may be executed in counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument. This Confidentiality Agreement shall be
governed by, and construed in accordance with, the laws of the State of Delaware
without regard to the conflicts of law principles thereof, and shall be binding
on the parties and their respective successors and permitted assigns. Neither
party may assign this Confidentiality Agreement without the prior written
consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Confidentiality
Agreement to be executed by their respective officers hereunto duly authorized
as of the date first written above.
COMPAQ COMPUTER CORPORATION PROXICOM, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: VP Operations & Finance Title: EVP & CFO
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