Exhibit 99(c)(3)
MUTUAL NONDISCLOSURE AGREEMENT
This mutual nondisclosure agreement (the "Agreement") made by and
between Computer Associates International, Inc., a Delaware corporation, with
offices located at Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000
("CA") and Computer Management Sciences, Inc., a corporation with offices at
Jacksonville, FL ("Company").
WHEREAS, CA is in the business of developing, manufacturing and
licensing proprietary computer software programs and, in connection therewith
has developed certain information that CA considers to be confidential
consisting of, or concerning the matter described in Exhibit A hereto (the "CA
Information"); and
WHEREAS, Company has expressed an interest in reviewing the CA
Information for the purpose described in Exhibit A (the "Purpose"); and
WHEREAS, Company has developed certain information that Company
considers to be confidential consisting of, or concerning the matter described
in Exhibit B hereto (the "Company Information"); and
WHEREAS, CA has expressed an interest in reviewing the Company
Information for the purpose described in Exhibit B (the "Purpose"); and
WHEREAS, the CA Information and the Company Information, (referred
to collectively as the "Information"), whether subject to patent or copyright
protection, or not capable of being so protected are highly confidential and
proprietary to, and constitute trade secrets of each respective company; and
each party is willing to disclose its Information to the other only if the
recipient on behalf of itself, its employees, agents, successors, heirs and
assigns, agrees to make no use or disclosure thereof except as provided herein.
NOW, THEREFORE, in consideration of the mutual disclosure of the
Information by the parties to each other, each of the parties, on behalf of
itself, its employees, agents, successors, heirs and assigns, agrees and
promises as follows:
1. In the absence of prior written consent of the disclosing party,
the receiving party shall not disclose to any third party, directly or
indirectly, the existence or contents of the Information, whether disclosed
either orally, in writing, or by any other means, nor the results of its
evaluation thereof. Each receiving party may disclose the Information to its
employees but only to the extent necessary to carry out the Purpose as described
in the applicable Exhibit. Each receiving party further warrants and agrees to
use its best efforts to prevent disclosure of the Information by its employees,
as well as any of its agents, successors, heirs and assigns to whom such
receiving party discloses such Information, by taking at least such steps to
protect such Information as it takes to protect its own confidential and
proprietary information, including by obtaining a written agreement of each such
person to maintain the confidentiality of the Information.
2. Each disclosing party shall at all times retain sole and
exclusive title to, ownership of, all rights in and control over the use of all
its Information.
3. Each receiving party shall refrain from making or causing to be
made any copies of the Information without prior written authorization of the
disclosing party.
4. Each receiving party, upon written request from the disclosing
party, shall promptly destroy or return all of the disclosing party's
Information to the disclosing party.
5. Each receiving party shall make no use, directly or indirectly,
of the other party's Information furnished hereunder beyond the Purpose, without
first securing the prior written consent of the disclosing party.
6. The obligations imposed on each receiving party under this
Agreement shall expire on the earlier of: (a) the date upon which the disclosing
party consents in writing to disclosure of its Information by the receiving
party; or (b) the date upon which the disclosing party formally announces,
releases, or otherwise discloses its Information to the public or otherwise
without an accompanying written undertaking by the recipient to protect such
Information from unauthorized disclosure.
7. As used herein, the term "Information" shall not include any
information that the recipient can establish: (a) was known to the recipient
prior to disclosure hereunder without an obligation of confidentiality; (b) was
obtained by the recipient from a third party having the right to disclose it;
(c) was or became generally available to the public without violation of this
Agreement; (d) was disclosed with the written authorization of the disclosing
party; or (e) was developed by the recipient independent of any reference to the
Information and independent of the participation of any person who had access to
the Information.
8. Either party may: (i) develop, manufacture, market and provide
any products or services, directly or through any third party, which are
competitive to the other party; and (ii) freely assign and re-assign its
employees in any way it chooses.
9. The parties understand and agree that: (i) no contract or
agreement providing for any transaction involving the parties shall be deemed to
exist between them unless and until a final definitive agreement has been
executed and delivered, and Company hereby waive, in advance, any claims
(including, without limitation, breach of contract) in connection with any
transaction between the parties unless and until the parties shall have entered
into a final definitive agreement; (ii) unless and until a final definitive
agreement regarding a transaction between the parties has been executed and
delivered, none of the parties will be under any legal obligation of any kind
whatsoever with respect to such a transaction by virtue of this Agreement,
except for the matters specifically agreed to therein; and (iii) each party
reserves the right, in its sole discretion, to reject any and all proposals made
by a party or any of its representatives with regard to a transaction between
the parties, and to terminate discussions and negotiations at any time.
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10. Each of Company and CA understand that the other has endeavored
to include in the Information materials that may be relevant to an evaluation of
the Merger, and each acknowledges that the other and its Representatives make no
representation or warranty (express or implied) under this Agreement as to the
accuracy or completeness of the Information. Each of Company and CA agrees that
neither party hereto, nor their respective Representatives, shall have any
liability to the other party or its Representatives based upon this Agreement
for any such inaccuracy or incompleteness, it being understood that only those
particular representations and warranties that may be made with regard to such
information in a definitive agreement, when, as and if executed, and subject to
such limitations and restrictions as may be specified in any such definitive
agreement, shall have any legal effect.
11. Each of Company and CA agrees that in the event it or anyone to
whom it transmits the Information pursuant to this Agreement is requested or
becomes legally compelled (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demands or similar
process) to disclose any of the Information, it agrees to provide the other
party with prompt written notice so that such party may seek a protective order
or other appropriate remedy or waive compliance with the provisions of this
Agreement. If such protective order or other remedy is not obtained or if such
party, in its sole discretion, waives compliance with any provision of this
Agreement, the other party will furnish only that part of the Information that
is legally required and will exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Information.
12. Each of Company and CA agrees that no failure or delay by the
other in exercising any right, power, or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise of any right, power, or privilege
thereunder.
13. Each of Company and CA agrees that the other may be irreparably
injured by a breach of this Agreement by it or its representatives and that such
injured party may be entitled to equitable relief, including injunctive relief
and specific performance, in the event of any breach of the provisions of this
Agreement. Such remedies shall not be deemed to be the exclusive remedy for a
breach of this Agreement, but shall be in addition to all other remedies
available at law or equity. Company and CA each agrees that the other shall have
the right to enforce all the terms of this Agreement.
14. For a period of one year, neither party will, without written
consent of the other party, directly or indirectly solicit for employment any of
the individuals involved in the discussions between the parties; provided,
however, that the foregoing provision will not prevent either party from
employing any such person who contacts it on his or her own initiative without
any direct or indirect solicitation or encouragement.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, and
further intending to bind its employees, agents, successors, heirs and assigns,
the parties have executed this Agreement as of the 7th day of January, 1999.
COMPUTER ASSOCIATES COMPUTER MANAGEMENT SCIENCES, INC.
INTERNATIONAL, INC.
BY /S/ XXXXXXX X. XXXXXX BY /S/ X. XXXXXX WISE
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NAME XXXXXXX X. XXXXXX NAME X. XXXXXX WISE
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TITLE SENIOR VICE PRESIDENT TITLE PRESIDENT / COO
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EXHIBIT A
CA INFORMATION consists of:
(i) Any oral or written information disclosed by CA to Company, (ii) all
discussions, documents and correspondence between CA and Company, including,
without limitation, the terms, conditions and existence of this agreement; (iii)
CA's identity, involvement and possible interest in this matter.
PURPOSE of disclosure is:
To discuss potential business opportunities.
EXHIBIT B
COMPANY INFORMATION consists of: (i) Any oral or written information disclosed
by Company to CA; (ii) all discussions, documents and correspondence between CA
and Company, including, without limitation, the terms, conditions and existence
of this agreement; (iii) Company's identity, involvement and possible interest
in this matter.
PURPOSE of disclosure is:
To discuss potential business opportunities.
