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EXHIBIT (d)(3)
[PMSC LOGO]
August 19, 1997
Stephen G. Morrison
Executive Vice President
General Counsel and Secretary
Van B. Honeycutt
Chairman, President
and Chief Executive Officer
Computer Sciences Corporation
2100 East Grand Avenue
El Segundo, California 90245
CONFIDENTIALITY AGREEMENT
Dear Mr. Honeycutt:
Computer Sciences Corporation (together with its subsidiaries and
affiliates, "CSC") has expressed an interest in a possible transaction involving
CSC and Policy Management Systems Corporation (together with its subsidiaries
and affiliates, "PMSC" and, such transaction, the "Transaction"). In connection
with each party's evaluation of such Transaction, each party has requested or
will request certain information concerning the other party which is non-public,
confidential or otherwise proprietary in nature (such information, including,
without limitation, any notes, summaries, reports, analyses or other materials
derived in whole or in part from such information, the "Confidential
Information"). The party furnishing Confidential Information is referred to
herein as "Provider" and the party receiving Confidential Information is
referred to herein as "Recipient". For purposes of this Agreement, the term
"Confidential Information" shall not include such portions of the Confidential
Information that (i) are or become generally available to the public other than
as a result of disclosure by Recipient or its Representatives (as defined in
paragraph 1 below), (ii) become available to Recipient on a non-confidential
basis from a source not subject to a confidential obligation to Provider,
whether by contractual, legal or fiduciary obligation or otherwise, or (iii)
were in Recipient's possession on a non-confidential basis prior to Provider's
disclosure to Recipient. As a condition to each Recipient being furnished the
Confidential Information, each party hereto agrees as follows:
1. Recipient recognizes and acknowledges the competitive value of the
Confidential Information and the damage that could result from the
disclosure thereof to third parties. Accordingly, Recipient agrees to
treat the Confidential Information strictly confidential and Recipient
will not, without the prior written consent of Provider, disclose the
Confidential Information (or the fact that the Confidential Information
has been made available, that discussions or negotiations concerning a
Transaction are taking place or any of the terms, conditions or other
facts relating to a Transaction) to any third party in any manner
whatsoever, in whole or in part, except that Recipient may disclose the
Confidential Information to those of Recipient's directors, officers,
employees, agents, advisors or other representatives (collectively,
"Representatives") who need to know the Confidential Information for the
purposes of evaluating the proposed Transaction and who have agreed to
treat the Confidential Information in strict confidence in accordance
with the terms of this Agreement. All Confidential Information disclosed
to Recipient or its Representatives will
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be used by Recipient and its Representatives solely for the purpose of
evaluating the Transaction and for no other purpose. Recipient agrees to
be responsible for any breach by any of its Representatives of the
matters referred to herein.
2. Recipient hereby acknowledges that Recipient is aware (and that each of
its Representatives have been or will be advised) that the United States
securities laws restrict Recipient and each of its Representatives
during such period of time as such person or entity is in possession of
material non-public information about a company from purchasing or
selling securities of Provider or from communicating such information to
a third party under circumstances in which it is reasonably foreseeable
that such third party is likely to purchase or sell such securities.
3. Upon the request of Provider or its Representatives, Recipient shall,
and shall cause its Representatives to, promptly return all Confidential
Information to Provider, without retaining any copies, summaries or
extracts thereof. In the event of such request, all documents, analyses,
compilations, studies or other materials prepared by Recipient or its
Representatives that contain or reflect Confidential Information shall
be destroyed and no copy thereof shall be retained (such destruction to
be confirmed in writing by a duly authorized officer of Recipient).
Notwithstanding the return or destruction of the Confidential
Information, Recipient and its Representatives shall continue to be
bound by their obligations of confidentiality and other obligations
hereunder.
4. In the event that Recipient or its Representatives are requested or
become legally compelled (by oral questions, interrogatories, requests
for information or documents, subpoena, investigative demand or similar
process) to disclose any of the Confidential Information, Recipient and
its Representatives will promptly provide Provider with written notice
so that Provider may seek a protective order or other appropriate remedy
and/or waive compliance with the provisions of this Agreement. If, in
the absence of a protective order or other remedy or waiver, Recipient
or its Representatives are, after consultation with Provider, legally
compelled to disclose such Confidential Information to any tribunal or
else stand liable for contempt or suffer other censure or penalty,
Recipient and its Representatives will furnish only that portion of the
Confidential Information which is legally required to be furnished and
each will exercise its best efforts to obtain reliable assurance that
confidential treatment will be accorded such Confidential Information.
5. In the event that a Transaction is not consummated, neither Recipient
nor its Representatives shall, directly solicit for employment any of
Provider's management at the level of Project Manager or above for a
period of one year from the date hereof, except with the prior written
approval of Provider; provided, however, that this prohibition against
solicitation shall not apply to recruitment advertising directed to the
public and shall not prohibit the hiring of any person who initiated
unsolicited contact with Recipient or its Representatives. In addition,
for a period of three years from the date hereof, without Provider's
prior written consent, Recipient shall not, directly or indirectly,
alone or in concert with others, (a) acquire, offer to acquire, or agree
to acquire, by purchase, gift or otherwise, any securities (as defined
below), or propose (or request permission to propose) or make any offer
for any Transaction involving Provider, or its assets, or its
securities, (b) make, or in any way participate in, any "solicitation"
of "proxies" (as such terms are used in the proxy rules of the United
States Securities and Exchange Commission), or advise or seek to
influence any person or entity with respect to the voting of, or giving
of consents with respect to, any securities, (c) form, join or in any
way participate in a "group" (as such term
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is used in Rule 13d-5 of the Securities Exchange Act of 1934, as
amended) or otherwise act to seek to control or influence the
management, board of directors, policies or affairs of Provider, (d)
make any request to waive or amend any provision of this Agreement or
otherwise take any action specified herein if, in the sole judgment of
Provider, such request may require public disclosure by Provider or (e)
encourage any third party to do any of the foregoing. As used in this
Agreement, the term "securities" shall mean any securities of the
referenced company and any direct or indirect warrants, rights or
options to acquire securities of the referenced company. Notwithstanding
the foregoing, the provisions of this paragraph shall cease to be
effective in the event that a third party, without any participation or
influence by CSC and or without the encouragement, participation or
consent of PMSC, in any manner, directly or indirectly, effects or
seeks, offers or proposes (whether publicly or otherwise) to effect (i)
any acquisition of all or substantially all of the securities (or
beneficial ownership thereof) (other than in a bona fide capital raising
transaction) or all or substantially all of the assets of PMSC or (ii)
any tender or exchange offer, merger or other business combination
involving PMSC.
6. Recipient acknowledges, on behalf of itself and its Representatives,
that neither Provider nor its Representatives makes any representations
or warranties, express or implied, as to the accuracy or completeness of
the Confidential Information, that neither Provider nor its
Representatives shall have any liability whatsoever to Recipient or its
Representatives or any other person as a result of the use of the
Confidential Information or any errors therein or omissions therefrom by
virtue of this Agreement and that Recipient and its Representatives
shall assume full responsibility for all conclusions derived from the
Confidential Information. Only those representations and warranties that
are made in a final definitive agreement between the parties hereto
regarding a Transaction, when, as and if executed and subject to such
limitations and restrictions as may be specified therein, will have any
legal effect. Recipient further acknowledges and agrees that Provider
shall at all times have the right, in its sole discretion, to reject any
and all proposals made by Recipient and/or its Representatives in
respect of a Transaction, to terminate discussions and negotiations with
Recipient and its Representatives at any time and to conduct any process
for a Transaction involving Provider as it may determine (including,
without limitation, negotiating with any other interested parties,
entering into a definitive agreement with such parties or modifying any
procedures relating to such process or Transaction, in each case,
without prior notice to Recipient or its Representatives).
7. Recipient hereby agrees that money damages would not be a sufficient
remedy for any breach or threatened breach of this Agreement by
Recipient or its Representatives and that Provider shall be entitled,
without the requirement of posting a bond or other security, to specific
performance and injunctive or other equitable relief in the event of any
such breach or threatened breach, in addition to all other remedies
available to Provider at law or in equity. In the event of litigation
relating to this Agreement, if a court of competent jurisdiction
determines that Recipient or its Representatives have breached this
Agreement, then Recipient shall reimburse Provider for legal fees and
expenses incurred by Provider in connection with such litigation,
including any appeals therefrom.
8. All inquiries for information by CSC or its Representatives about PMSC
or the Transaction and any Communications with PMSC shall be made
through: Michael A. Feder or Lawrence
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A. Hamdan of Credit Suisse First Boston Corporation. All inquiries for
information by PMSC or its Representatives about CSC or the Transaction
and any communication with CSC shall be made through: Gene Sykes, Mark
Dzialga, Gregg Lumkaw, or John Cocoziello of Goldman Sachs & Co. LLP.
Neither Recipient nor its Representatives will contact any third party
with whom Provider has a business or other relationship (including any
employee, customer, supplier, stockholder or creditor of Provider) in
connection with a Transaction without the prior written consent of
Provider.
9. a. No failure or delay by either party hereto or its Representatives 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 hereunder. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of the
remaining provisions of this Agreement.
b. This Agreement shall be governed by and construed in accordance with
the laws of the State of South Carolina, without giving effect to
principles of conflicts of laws. Each party hereto, on behalf of itself
and its Representatives, agrees to submit to the jurisdiction of any
court of competent jurisdiction located in the State of South Carolina
to resolve any dispute relating to this Agreement and waives the right
to move to dismiss or transfer any such action brought in any such court
on the basis of any objection to personal jurisdiction or venue.
If you agree to the terms and conditions of the Agreement, please indicate
such acceptance by signing and returning to the undersigned the duplicate copy
of this agreement. This Agreement may be executed in several counterparts, all
of which together shall constitute one and the same agreement.
Very truly yours,
POLICY MANAGEMENT SYSTEMS CORPORATION
By: /s/ STEPHEN G. MORRISON
----------------------------------------
Name: Stephen G. Morrison
Title: Executive Vice President
General Counsel and Secretary
Agreed to as of the date first written above:
COMPUTER SCIENCES CORPORATION
By: /s/ HAYWARD D. FISK
--------------------------------------
Name: Hayward D. Fisk
Title: Vice President
General Counsel and Secretary
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[PMSC LOGO]
James J. McGovern
Senior Vice President
Deputy General Counsel
(803) 333-5559
Fax: (803) 333-5560
e-mail: jimmcgovern@pmsc.com
Mr. Van B. Honeycutt
Chairman, President and
Chief Executive Officer
Computer Sciences Corporation
2100 East Grand Avenue
El Segundo, California 90245
Dear Mr. Honeycutt:
Computer Sciences Corporation ("CSC") and Policy Management Systems
Corporation ("PMSC") are parties to a Confidentiality Agreement dated August 19,
1997. PMSC hereby releases CSC from the Confidentiality Agreement solely to the
extent of any provision that would prevent or otherwise restrict the ability of
CSC to make a proposal to PMSC's Board of Directors. All other terms and
provisions of the Confidentiality Agreement remain in full force and effect.
Policy Management Systems Corporation
By: /s/ JAMES J. MCGOVERN
--------------------------------------
James J. McGovern
Senior Vice President and
Deputy General Counsel
JJM/crc-p
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May 25, 2000
Van B. Honeycutt
Chairman, President
and Chief Executive Officer
Computer Sciences Corporation
2100 East Grand Avenue
El Segundo, California 90245
Dear Mr. Honeycutt:
Policy Management Systems Corporation ("PMSC") and Computer Sciences
Corporation ("CSC") are parties to a Confidentiality Agreement, dated as of
August 19, 1997 (the "Confidentiality Agreement"). On March 31, 2000, PMSC
released (the "Release") CSC from the Confidentiality Agreement solely to the
extent of any provisions that would prevent or otherwise restrict the ability of
CSC to make a proposal to PMSC's Board of Directors.
PMSC and CSC hereby reaffirm the Confidentiality Agreement, subject to the
Release, and agree that the phrase "for a period of one year from the date
hereof" in the first sentence of paragraph 5 of the Confidentiality Agreement
shall be amended to read "from August 19, 1997 to August 18, 1998 and from May
24, 2000 to May 23, 2001."
A new section 5.1 is hereby added to the Confidentiality Agreement:
5.1 From the day before the third anniversary of this Agreement until
November 30, 2001, without PMSC's prior written consent, CSC shall not and
CSC shall cause each of its Representatives not to, directly or indirectly,
alone or in concert with others, acquire or agree to acquire, by purchase,
gift or otherwise, any securities (as defined above), provided that nothing
in this paragraph 5.1 shall prevent CSC from (a) making an offer to acquire
all of the common stock or other capital stock of the PMSC, whether through
merger, tender or exchange offer or otherwise or (b) purchasing shares of
capital stock of the PMSC pursuant to a tender or exchange offer for all
outstanding shares. This paragraph 5.1 shall not prevent CSC from acquiring
or agreeing to acquire any securities if, after the date hereof, (x) a
third party shall have made a filing under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, with respect to the purchase of more
than $15 million (as calculated under the HSR Act) of the outstanding
shares in open market or privately negotiated transactions or (y) a third
party shall have made a filing on Schedule 13D under the Securities
Exchange Act of 1934 disclosing the beneficial ownership of more than 5% of
the outstanding shares and an intention to acquire the PMSC.
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All other terms and provisions of the Confidentiality Agreement remain in
full force and effect.
If you agree to the foregoing, please indicate such acceptance by signing
and returning to the undersigned the duplicate copy of this Agreement. This
Agreement may be executed in counterparts, all of which together shall
constitute one and the same agreement.
Very truly yours,
POLICY MANAGEMENT SYSTEMS CORPORATION
By: /s/ STEPHEN G. MORRISON
----------------------------------------
Name: Stephen G. Morrison
Title: Executive Vice President,
General Counsel and Secretary
Agreed as of the date first written above:
COMPUTER SCIENCES CORPORATION
By: /s/ PAUL T. TUCKER
--------------------------------------
Name: Paul T. Tucker
Title: Vice President