Confidentiality Agreement
Exhibit (d)(3)
3PAR Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX
July 17, 2010
CONFIDENTIAL
Ladies and Gentlemen:
In connection with a possible negotiated transaction (a “Transaction”) between 3PAR Inc., a
Delaware corporation (“Company”), and Dell Inc., a Delaware corporation (“Buyer”), and in order to
allow the Company and Buyer to evaluate the Transaction, each of the Company and Buyer have and
will convey or deliver to the other party hereto certain information about the Transaction and may
deliver to the other party certain information about its business, operations, financial condition
and forecasts, assets, liabilities, personnel and other confidential matters (such party when
disclosing such information being referred to herein as the “Disclosing Party” and when receiving
such information being referred to herein as the “Receiving Party”).
For purposes of this letter agreement, the term “Proprietary Information” shall mean and
include (i) all information furnished by the Disclosing Party or its Representatives (as defined
below) to the Receiving Party or its Representatives, whether furnished before or after the date
hereof and the effectiveness of this letter agreement, and regardless of the manner in which it is
furnished, and (ii) all notes, analyses, compilations, studies, interpretations or other documents
prepared by the Receiving Party or any of its Representatives which contain or are based upon, in
whole or in part, any Proprietary Information. Notwithstanding the foregoing, for purposes of this
letter agreement, “Proprietary Information” shall not include any information which (a) is or
becomes generally available to the public other than as a result of a disclosure by the Receiving
Party or its Representatives in breach or other violation of this letter agreement, (b) was in the
possession of the Receiving Party on a non-confidential basis prior to its disclosure by the
Disclosing Party or any of its Representatives to the Receiving Party, unless the Receiving Party
is aware that the source of such information was bound by a confidentiality agreement with the
Disclosing Party or any or its Representatives or otherwise under a contractual, legal, fiduciary
or other obligation not to transmit the information to the Receiving Party, (c) becomes available
to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or
any of its Representatives unless the Receiving Party is aware that such source was bound by a
confidentiality agreement with the Disclosing Party or any or its Representatives or otherwise
under a contractual, legal, fiduciary or other obligation to the Disclosing Party or any of its
Representatives not to transmit the information to the Receiving Party, or (d) was independently
developed by the Receiving Party without reference to or use of any of the Proprietary Information.
For purposes of this letter agreement, (i) the term “Representative” shall mean, as to any
person, its directors, officers, employees, agents and advisors (including, without limitation,
financial advisors, attorneys and accountants), and (ii) the term “person” shall be broadly
interpreted to include, without limitation, any corporation, limited liability company, general or
limited partnership, business trust, unincorporated associated or other entity or individual.
Subject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the
Disclosing Party, the Receiving Party and its Representatives (i) shall not use Proprietary
Information for any purpose other than evaluating the Transaction and consummating the Transaction
in a manner approved by the Company, and (ii) except as required by applicable law, regulation
(including, without limitation, any rule, regulation or policy statement of any national securities
exchange, market or automated quotation system on which any of the Receiving Party’s securities are
listed or quoted) or legal process,
shall keep all Proprietary Information confidential, shall use
at least the same degree of care to protect the Proprietary Information as it uses with its own
confidential information and shall not disclose or reveal any Proprietary Information to any person
other than those persons who are employed or engaged by the Receiving Party or its Representatives
and actively and directly participating in its evaluation of the Transaction or who otherwise need
to know the Proprietary Information for the sole purpose of evaluating the Transaction. Except as
required by applicable law, regulation (including, without limitation, any rule, regulation or
policy statement of any national securities exchange, market or automated quotation system on which
any of the Receiving Party’s securities are listed or quoted) or legal process, neither party shall
disclose to any person (other than those persons who are employed or engaged by it or its
Representatives and who are actively and directly participating in its evaluation of the
Transaction or who otherwise need to know the Proprietary Information for the sole purpose of
evaluating the Transaction) any information about the Transaction, including, without limitation,
the possible terms or conditions thereof or any other facts relating thereto, the fact that
discussions are taking place between the parties hereto with respect thereto or the status thereof,
the fact that Proprietary Information has been made available to the Receiving Party or its
Representatives or the fact that the parties have entered into this letter agreement.
The Receiving Party shall cause its Representatives to whom Proprietary Information is
provided or made available to comply with the terms of this letter agreement and shall be primarily
(and not as a guarantor) responsible and liable for any breach or violation by any of its
Representatives of the terms of this letter agreement that apply to Representatives.
In the event that the Receiving Party and/or any of its Representatives are requested pursuant
to, or required by, applicable law or regulation (including, without limitation, any rule,
regulation or policy statement of any national securities exchange, market or automated quotation
system on which any of the Receiving Party’s securities are listed or quoted) or by legal process
to disclose any Proprietary Information or any other information concerning the Disclosing Party or
the Transaction, the Receiving Party shall provide the Disclosing Party with prompt written notice
of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate
protective order or other remedy with respect thereto, (ii) to consult with the Receiving Party
with respect to taking steps to resist or narrow the scope of such request or legal process or
(iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the
event that such protective order or other remedy is not obtained, or the Disclosing Party waives
compliance, in whole or in part, with the terms of this letter agreement, the Receiving Party
and/or its Representative shall use their respective commercially reasonable efforts (A) to
disclose only that portion of the Proprietary Information which is legally required to be disclosed
and (B) to provide that all Proprietary Information that is so disclosed will be accorded
confidential treatment to fullest extent available under applicable laws and regulations. In the
event that the Receiving Party and/or its Representatives shall have complied fully with the
provisions of this paragraph, the Receiving Party and its Representatives shall have no liability
hereunder for the disclosure of that Proprietary Information which it is legally required to be so
disclosed.
To the extent that any Proprietary Information may include information and material that is
subject to the attorney-client privilege, work product doctrine or any other applicable privilege
concerning pending or threatened legal proceedings or governmental investigations, the parties
hereto understand and agree that they have a commonality of interest with respect to such matters
and it is their desire, intention and mutual understanding that the sharing of such information and
material is not intended to, and shall not, waive or diminish in any way the confidentiality of
such information and material or its continued protection under the attorney-client privilege, work
product doctrine or other applicable privilege. All Proprietary Information conveyed or delivered
by a party hereto or its Representatives that is entitled to protection under the attorney-client
privilege, work product doctrine or other applicable privilege shall remain entitled to such
protection under these privileges, this agreement, and under the joint defense doctrine. Nothing
in this letter agreement shall obligate either party hereto to reveal material subject to the
attorney-client privilege, work product doctrine or any other applicable privilege.
In the event that the Disclosing Party, in its sole discretion, so requests or the Transaction
is not consummated by the Receiving Party, the Receiving Party shall, upon the Disclosing Party’s
written request, either promptly destroy or deliver to the Disclosing Party, at the Receiving
Party’s option, all
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Proprietary Information delivered by the Disclosing Party or any of its
Representatives to the Receiving Party or any of its Representatives, and destroy all copies,
reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form
or on intangible media, such as electronic mail or computer files) in the
Receiving Party’s possession or in the possession of any Representatives of the Receiving
Party; provided, however, that if a legal proceeding has been instituted to seek disclosure of the
Proprietary Information, such material shall not be destroyed until the proceeding is settled or a
final judgment with respect thereto has been rendered. Notwithstanding the foregoing, the
Receiving Party’s outside accountants may retain in confidence one file copy of their work papers
and final reports in accordance with their professional obligations, and the Receiving Party is not
required to return or destroy Proprietary Information which is comprised of minutes of meetings of
your board of directors or other documents or records that you are required to preserve pursuant to
applicable law or regulation, or electronic Proprietary Information that remains in ordinary,
routine backups of information technology systems or in legally required information preservation
systems that cannot be accessed (and that are not accessed) by anyone other than regulatory
compliance personnel or legal counsel to the Receiving Party.
Subject to the terms and conditions of a definitive agreement regarding the Transaction and
without prejudice thereto, each party hereto acknowledges that neither it nor its Representatives,
nor any of the directors, officers, employees, agents or controlling persons of such party and its
Representatives, makes any express or implied representation or warranty as to the accuracy or
completeness of the Proprietary Information. The Receiving Party shall not be entitled to rely on
the accuracy or completeness of any Proprietary Information, but shall be entitled to rely solely
on such representations and warranties regarding the accuracy and completeness of the Proprietary
Information as may be made to it in any definitive agreement relating to the Transaction, subject
to the terms and conditions of such definitive agreement. Each of the parties hereto understands
and agrees that nothing in this letter agreement shall be construed to require either party hereto
to disclose or otherwise provide any particular Proprietary Information to the other party hereto,
and that each party hereto shall be entitled, in its sole discretion, to withhold from the other
party hereto any Proprietary Information.
Until a definitive agreement regarding the Transaction has been executed by the parties
hereto, neither party hereto shall be under any legal obligation or have any liability to the other
party hereto of any nature whatsoever with respect to the Transaction by virtue of this letter
agreement or otherwise (other than with respect to the confidentiality and other matters set forth
herein). Each party hereto and its Representatives (i) may conduct the process that may or may not
result in the Transaction in such manner as such party, in its sole discretion, may determine
(including, without limitation, negotiating and entering into a definitive agreement with any third
party without notice to the other party) and (ii) reserves the right to change (in its sole
discretion, at any time and without notice to the other party) the procedures relating to the
parties’ consideration of the Transaction (including, without limitation, terminating all further
discussions with the other party and requesting that the other party return or destroy the
Proprietary Information as described above).
Each party is aware, and shall advise its Representatives who are informed of the matters that
are the subject of this letter agreement, of the restrictions imposed by the United States
securities laws on the purchase or sale of securities by any person who has received material,
non-public information from the issuer of such securities and on the communication of such
information to any other person when it is reasonably foreseeable that such other person is likely
to purchase or sell such securities in reliance upon such information.
Without prejudice to the rights and remedies otherwise available to either party hereto, each
party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other
party hereto or any of its Representatives breach or threaten to breach any of the provisions of
this letter agreement. In the event of litigation relating to this letter agreement, if a court of
competent jurisdiction determines in a final order from which there is no appeal that this letter
agreement has been breached by a party or by its Representatives, the breaching party or the party
whose Representatives have breached this Agreement, as the case may be, will reimburse the other
party for its costs and expenses (including, without limitation, legal fees and expenses) incurred
in connection with the enforcement of this letter agreement and such litigation.
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It is further understood and agreed that no failure or delay by either party hereto 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.
This letter agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to its principles or rules regarding conflicts of laws,
other than such principles directing application of Delaware. Each party hereby consents to the
institution and resolution of any action or proceeding of any kind or nature with respect to or
arising out of this agreement brought by any party hereto in the federal or state courts located
within the State of Delaware.
This letter agreement contains the entire agreement between the parties hereto concerning
confidentiality of their respective Proprietary Information, and no modification of this letter
agreement or waiver of the terms and conditions hereof shall be binding upon either party hereto,
unless approved in writing by each such party.
Please confirm your agreement with the foregoing by signing and returning to the undersigned
the duplicate copy of this letter enclosed herewith.
| 3PAR INC. |
||||
| By: | /s/ A.A. Short | |||
| Name: | A.A. Short | |||
| Title: | General Counsel | |||
ACCEPTED AND AGREED as of
the date first written above:
the date first written above:
| DELL INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | VP-Legal | |||
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