Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 14D9 Tender-Offer Solicitation/Recommendation Statement 36 200K
2: EX-1 Agreement and Plan of Merger 54 211K
3: EX-2 License Agreement Dated October 15, 1998 27 87K
4: EX-3 Stockholder Agreement With King R. Lee 10 37K
5: EX-4 Stockholder Agreement With Frank W. T. Lahaye 10 37K
6: EX-5 Stockholder Agreement With William H. Lane Iii 10 37K
7: EX-6 Stockholder Agreement With Howard Morgan 10 37K
8: EX-7 Stockholder Agreement With Frank Greico 10 37K
9: EX-8 Stockholder Agreement With Joyce Wrenn 10 36K
10: EX-9 Stockholder Agreement With Suzanne Dickson 10 37K
11: EX-10 Stockholder Agreement With Gadi Navon 10 36K
12: EX-11 Stockholder Agreement With Cheri Kaplan-Smith 10 37K
13: EX-12 Stockholder Agreement With John Strosahl 10 37K
14: EX-13 Letter to Stockholders of Quarterdeck Corporation 2± 11K
15: EX-14 Fairness Opinion of Broadview International LLC 2 17K
16: EX-15 Confidentiality Agreement Dated September 15, 1998 3 15K
17: EX-16 Disclosure Agreement 6 27K
18: EX-17 Form of Indemnification Agreement 7 33K
19: EX-18 Proxy Statement Pages 8 41K
EX-16 — Disclosure Agreement
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EXHIBIT 16
October 1, 1998
Quarterdeck Corporation
13160 Mindanao Way
Marina del Rey, California 90292
Ladies & Gentlemen:
In connection with your consideration of a possible negotiated transaction
(the "Transaction") between Symantec Corporation (the "COMPANY") and Quarterdeck
Corporation ("Quarterdeck"), the Company and Quarterdeck expect to make
available to one another certain information concerning our respective business,
financial condition, operations, assets and liabilities. As a condition to such
information being furnished to each party and its directors, officers,
employees, agents or advisors (including, without limitation, attorneys,
accountants, consultants, bankers and financial advisors) (collectively,
"REPRESENTATIVES"), each party agrees to treat any information concerning the
other party (whether prepared by the disclosing party, its advisors or otherwise
and irrespective of the form of communication) which is furnished hereunder or
furnished prior hereto in connection with our discussions to a party or to its
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 letter agreement, and to take or abstain from taking
certain other actions hereinafter set forth.
1. Evaluation Material. The term "Evaluation Material" also shall be
deemed to include all notes, analyses, compilations, studies, interpretations or
other documents prepared by each party or its Representatives which contain,
reflect or are based upon, in whole or in part, the information furnished to
such party or its Representatives pursuant hereto. The term "Evaluation
Material" does not include 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, (b) was within the receiving party's possession
prior to its being furnished to the receiving party by or on behalf of the
disclosing party pursuant hereto or prior hereto in connection with our
discussions; provided that the source of such information was not known by the
receiving party to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the disclosing
party or any other party with respect to such information, (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; provided that such source is not
bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the disclosing party or any other
party with respect to such information, (d) is not clearly identified as
confidential or was not clearly understood by the parties to have been disclosed
on a confidential basis, or (e) is independently developed by the receiving
party without use of or reference to the Evaluation Material.
2. Purpose of Disclosure of Evaluation Material. It is understood and
agreed to by each party that any exchange of information under this letter
agreement shall be solely for the purpose of
evaluating a potential business transaction between the parties and not to
affect, in any way, each party's relative competitive position to each party or
to other entities. It is further agreed that the information to be disclosed to
each other shall only be that information which is reasonably necessary to
evaluate a proposed transaction and that information which is not reasonably
necessary for such purposes shall not be disclosed or exchanged.
3. Use and Disclosure of Evaluation Material. Each party hereby agrees
that it and its Representatives shall use the other's Evaluation Material solely
for the purpose of evaluating a possible transaction between the parties, and
that the disclosing party's Evaluation Material will be kept confidential and
each party and its Representatives will not copy or disclose any of the other's
Evaluation Material in any manner whatsoever; provided, however, that the
receiving party may make any use or disclosure of such information to which the
disclosing party gives its prior written consent.
4. Non-Disclosure of Transaction. In addition, each party agrees that,
without the prior written consent of the other party, it and its Representatives
will not disclose to any other person the fact that any Evaluation Material has
been made available hereunder, that discussions or negotiations are taking place
concerning a possible transaction involving the parties or any of the terms,
conditions or other facts with respect thereto (including the status thereof);
provided that Quarterdeck may make such disclosure to Northwestern Mutual Life
Insurance Company under appropriate confidentiality arrangements provided that a
party may make such disclosure if, in the reasonable opinion of outside counsel
for such party, such disclosure is required by law, regulation or exchange or
Nasdaq National Market System requirements.
5. Required Disclosure. In the event that a party or any of its
Representatives is requested or required (by government authorities by oral
questions, interrogations, requests for information or documents in legally
required government filings, legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the other party's Evaluation
Material, the party requested or required to make the disclosure shall provide
the other party with prompt written notice of any such request or requirement so
that the other party may seek a protective order or other appropriate remedy
and/or waive compliance with the provisions of this letter agreement. If, in the
absence of a protective order or other remedy or the receipt of a waiver by such
other party, the party requested or required to make the disclosure or any of
its Representatives is nonetheless in the written opinion of counsel, legally
compelled to disclose the other party's Evaluation Material to any government
agency or tribunal or else stand liable for contempt or suffer other censure or
penalty, the party requested or required to make the disclosure or its
Representative may, without liability hereunder, disclose to such government
agency or tribunal only that portion of the other party's Evaluation Material
which such counsel advises is legally required to be disclosed; provided that
the party requested or required to make the disclosure exercises its best
efforts to preserve the confidentiality of the other party's Evaluation
material, including, without limitation, by cooperating with the other party to
obtain confidential treatment or an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the other
party's Evaluation Material by such government agency or tribunal.
6. Termination of Discussion. If either party decides that it does not
wish to proceed with a transaction with the other party, the party so deciding
will promptly inform the other party by the way of a notice of termination of
that decision. In that case, or at any time upon the request of the disclosing
party for any reason, each receiving party will promptly deliver to the
disclosing party all Evaluation Material (and all copies thereof) furnished to
the receiving party or its Representatives
2
by or on behalf of the disclosing party pursuant hereto. In the event of such a
decision or request, all other Evaluation Material incorporated into materials
prepared by the receiving party shall be destroyed and no copy thereof shall be
retained, and in no event shall either party be obligated to disclose or provide
the material prepared by it or its Representatives to the other party.
Notwithstanding the return or destruction of the Evaluation Material, each party
and its Representatives will continue to be bound by its obligations of
confidentiality and other obligations hereunder.
7. No Representation of Accuracy. Each party understands and acknowledges
that neither party nor any of its Representatives makes any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material made available to it. Each party agrees that neither party
nor any of its Representatives shall have any liability to the other party or to
any of its Representatives relating to or resulting from the use of such other
party's Evaluation Material or any errors therein or omissions therefrom. Only
those representations or warranties which are made in a final definitive
agreement regarding any transaction contemplated hereby, when, as and if
executed, and subject to such limitations and restrictions as may be specified
therein, will have any legal effect.
8. Definitive Agreements. Each party understands and agrees that no
contract or agreement providing for any transaction of the type contemplated by
this letter agreement involving the parties shall be deemed to exist between the
parties unless and until a final definitive agreement has been executed and
delivered. Each party also agrees that unless and until a final definitive
agreement regarding a transaction between the parties has been executed and
delivered, neither party will be under any legal obligation of any kind
whatsoever with respect to such a transaction by virtue of this letter agreement
except for the matters specifically agreed to herein. Both parties further
acknowledge and agree that each party reserves the right, in its sole
discretion, to reject any and all proposals made by the other party or any of
its Representatives with regard to a transaction between the parties, and to
terminate discussions and negotiations at any time.
9. Waiver. It is understood and agreed that no failure or delay by either
party 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 future exercise thereof or the exercise of any other right, power or
privilege hereunder.
10. Nonsolicitation of Employees. Beginning on the date of this letter and
continuing until 3 months after the date of a notice of termination under
Section 6 above, neither party will, either for itself or for any other person
or entity, directly or indirectly, solicit, induce or attempt to induce any
employee of the other to terminate his or her employment with the other party.
The parties agree that general solicitation through newspaper advertising or job
fairs shall not be deemed a violation of this provision.
11. No-Shop Provision. Until the close of business on October 13, 1998,
Quarterdeck will not, and will not permit its officers, directors, employees,
agents or Representatives, or any other person acting on its behalf, to (a)
solicit, encourage, negotiate with or accept any offer from any party concerning
the possible disposition of all or any substantial portion of Quarterdeck's
business, assets
3
or capital stock by merger, sale or any other means or any other transaction
that would involve a change in control of Quarterdeck, (b) hold or participate
in discussions or negotiations with any party (other than the Company) with
respect to any such transaction, or (c) enter into any agreement with any party
(other than the Company) with respect to any such transaction. Quarterdeck also
agrees that it will notify the Company immediately if Quarterdeck receives any
inquiry after the date hereof from any third party with respect to any such
transaction, or any possible acquisition of any of its capital stock or assets.
12. No Trading in Securities. Both parties agree to take all reasonable
precautions to prevent any trading in their respective securities by their
respective officers, directors, employees and agents having knowledge of the
proposed transaction between the parties until the proposed transaction has been
sufficiently publicly disclosed. The parties understand and agree that until a
press release is issued regarding a proposed transaction between the parties,
neither party will disclose the fact that negotiations are taking place, except
to professional advisors and to employees of the parties on a confidential,
need-to-know basis and by Quarterdeck to Northwestern.
13. Injunctive Relief. It is further understood and agreed that money
damages would not be a sufficient remedy for any breach of this letter agreement
by either party or any of its Representatives and that the non-breaching party
shall be entitled to equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies shall not be deemed
to be the exclusive remedies for a breach of this letter agreement but shall be
in addition to all other remedies available at law or equity. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that either party or any of its Representatives have
breached this letter agreement, then the breaching party shall be liable and pay
to the non-breaching party the reasonable legal fees incurred in connection with
such litigation.
14. Governing Law. This Agreement shall be governed by the internal laws
of the State of California.
4
Please confirm your agreement with the foregoing by signing and returning
one copy of this letter to the undersigned, whereupon this letter agreement
shall become a binding agreement between Quarterdeck and the Company.
Very truly yours,
Symantec Corporation
By:
----------------------------------
Accepted and Agreed as of the
date first written above:
Quarterdeck Corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
5
October 13, 1998
Sossa Corporation
10201 Torre Avenue
Cupertino, California 95014
Ladies & Gentlemen:
In reference to paragraph 11 of the letter agreement dated October 1,
1998, between Sossa Corporation and McGwire Corporation, this letter will
confirm our agreement to extend the term of the "No Shop Provision" until the
close of business on Friday, October 16, 1998. Please sign below to indicate
your consent.
Very truly yours,
McGwire Corporation
/s/ King R. Lee
------------------------------
King R. Lee
Interim CEO
Accepted and Agreed as of
the date first written above:
Sossa Corporation
By: /s/ Derek Witte
----------------
Name:
--------------
Title: VP
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Dates Referenced Herein and Documents Incorporated by Reference
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