Exhibit 99(e)(5)
FINAL EXECUTED
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CYTYC CORPORATION
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February 13, 2002
Digene Corporation
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Confidentiality Agreement
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Ladies and Gentlemen:
Solely in order to evaluate a possible negotiated transaction (the
"Proposed Transaction") between Cytyc Corporation ("Cytyc") and Digene
Corporation ("Digene"), each may disclose and deliver to the other party certain
information about its properties, employees, finances, businesses, operations
and prospects (such party when disclosing such information being the "Disclosing
Party" and such party when receiving such information being the "Receiving
Party"). All such information furnished by the Disclosing Party or its
Representatives (as defined below), whether furnished before or after the date
hereof, whether oral or written, and regardless of the manner in which it is
furnished, is referred to in this letter agreement as "Proprietary Information."
The term "Proprietary Information" also shall be deemed to include all notes,
analyses, compilations, studies, interpretations or other documents prepared by
the Receiving Party or its Representatives which contain, reflect or are based
upon, in whole or in part, the information furnished to the Receiving Party or
its Representatives pursuant hereto. Proprietary Information does not include,
however, 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 in the possession of the Receiving Party prior to its
disclosure by the Disclosing Party or its Representatives, 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, or (c) becomes available to the Receiving Party on
a non-confidential basis from a person other than the Disclosing Party or its
Representatives who (to the knowledge of the Receiving Party after reasonable
inquiry) is not otherwise bound by a confidentiality agreement with the
Disclosing Party or any of its Representatives, or is otherwise not under any
contractual, legal or fiduciary obligation to the Disclosing Party or any of its
Representatives not to transmit the information to the Receiving Party. As used
in this letter agreement, (a) the term "Representative" means, as to any person,
such person's affiliates and its and their directors, officers, employees,
agents, advisors (including, without limitation, financial advisors, counsel and
accountants) and controlling persons, (b) the term "person" shall be broadly
interpreted to include, without limitation, any corporation, company, limited
liability company, partnership, other entity or individual, and (c) the term
"affiliate" shall have the meaning provided under the Securities Exchange Act of
1934, as amended and the rules and regulations promulgated thereunder.
Digene Corporation
February 13, 2002
Page 2
Subject to the immediately succeeding paragraph, unless otherwise
agreed to in writing by the Disclosing Party in advance, the Receiving Party
agrees: (a) except as required by law or regulation or stock exchange rule or
legal process, to keep all Proprietary Information confidential and not to
disclose or reveal any Proprietary Information to any person other than its
Representatives who are actively and directly participating in the evaluation of
the Proposed Transaction or who otherwise need to know the Proprietary
Information for the purpose of evaluating the Proposed Transaction and to cause
each such Representative to observe the terms of this letter agreement; (b) not
to use Proprietary Information for any purpose other than in connection with its
evaluation of the Proposed Transaction or the consummation of the Proposed
Transaction; and (c) except as required by law or regulation or stock exchange
rule or legal process, not to disclose to any person (other than those of its
Representatives who are actively and directly participating in the evaluation of
the Proposed Transaction or who otherwise need to know for the purpose of
evaluating the Proposed Transaction and, in the case of each such
Representative, whom it will cause to observe the terms of this letter
agreement) any information about the Proposed Transaction, or the terms or
conditions or any other facts relating thereto, including, without limitation,
the fact that discussions are taking place with respect thereto or the status
thereof, the existence or subject of this letter agreement, or the fact that
Proprietary Information has been made available to the Receiving Party or its
Representatives. The Receiving Party will be responsible for any breach of the
terms of this letter agreement by the Receiving Party or any of its
Representatives.
In the event that the Receiving Party is requested pursuant to, or
required by, applicable law or regulation or stock exchange rule or by legal
process to disclose any Proprietary Information or any other information
concerning the Disclosing Party or the Proposed Transaction, the Receiving Party
agrees that it will provide the Disclosing Party with prompt notice of such
request or requirement in order to enable the Disclosing Party (a) to seek an
appropriate protective order or other remedy, (b) to consult with the Receiving
Party with respect to the Disclosing Party taking steps to resist or narrow the
scope of such request or legal process, or (c) to waive compliance, in whole or
in part, with the terms of this letter agreement and that it will reasonably
cooperate with the Disclosing Party with respect to seeking such order or remedy
or resisting or narrowing the scope of such request. In the event that no such
protective order or other remedy is obtained or that the Disclosing Party waives
compliance with the terms of this letter agreement, the Receiving Party will
furnish only that portion of any Proprietary Information which the Receiving
Party is advised by counsel is legally required and will exercise all reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded any Proprietary Information.
The parties hereto are aware, and each party will 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 person is likely to purchase or sell such securities in
reliance upon such information.
Digene Corporation
February 13, 2002
Page 3
The Receiving Party acknowledges that neither the Disclosing Party
nor any of its Representatives makes any express or implied representation or
warranty as to the accuracy or completeness of any Proprietary Information, and
the Receiving Party agrees that none of such persons shall have any liability to
the Receiving Party or any of its Representatives relating to or arising from
the use of any Proprietary Information by the Receiving Party or any of its
Representatives or for any errors therein or omissions therefrom. The Receiving
Party also agrees that it is not entitled to rely on the accuracy or
completeness of any Proprietary Information. Only those representations or
warranties that are made in a final written definitive agreement governing any
transaction contemplated hereby, when as and if executed, and subject to such
limitations and restrictions as may be specified therein, shall have any legal
effect.
Each party hereto agrees that, without the prior written consent of
the other party, it will not for a period of two years from the date hereof
directly or indirectly solicit for employment or employ any person who is now
employed by the other party and who is identified as a result of any evaluation
or otherwise in connection with the Proposed Transaction; provided, however,
that neither party shall be prohibited from employing any such person who
contacts such party on his or her own initiative and without any direct or
indirect solicitation by such party. The phrase "direct or indirect solicitation
by such party" shall not be deemed to include general solicitations of
employment not specifically directed towards employees of the other party.
If either party hereto determines that it does not wish to proceed
with the Proposed Transaction, it will promptly advise the other party of that
decision. In such case, or in the event that the Proposed Transaction is not
consummated, or at any time upon request of the Disclosing Party, the Receiving
Party will promptly return to the Disclosing Party all copies of Proprietary
Information in its possession or in the possession of any of its Representatives
and will not retain any copies or other reproductions in whole or in part of
such material. All other documents, memoranda, notes, summaries, analyses,
extracts, compilations, studies or other material whatsoever prepared by it or
any of its Representatives based on the Proprietary Information will be
destroyed, and such destruction will be certified in writing to the other party
by an authorized officer supervising such destruction. Any oral Proprietary
Information will continue to be subject to this letter agreement.
Notwithstanding the return or destruction of the Proprietary Information, the
Receiving Party and its Representatives will continue to be bound by their
obligations hereunder.
Each party agrees that all inquiries, requests for information and
other communications with the other party or such other party's Representatives
shall only be made through or with the consent of the Chief Executive Officer or
Chief Financial Officer of such other party or any designee thereof.
The parties agree that until a definitive agreement relating to the
Proposed Transaction has been executed and delivered by both parties, none of
Digene, Cytyc nor any of their respective subsidiaries or affiliates will be
under any legal or equitable obligation of any kind whatsoever with respect to
any such transaction between Digene and Cytyc by virtue of this
Digene Corporation
February 13, 2002
Page 4
letter agreement or any written or oral expression with respect thereto by any
of Digene's or Cytyc's affiliates or Representatives except, in the case of this
letter agreement and any written agreement, for the matters specifically agreed
to herein and therein.
This letter agreement (a) shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without reference to its
conflict of laws principles, (b) may not be amended or modified except by an
instrument in writing signed by each of the parties hereto, (c) constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and (d) may be executed and delivered (including by facsimile transmission) in
one or more counterparts, each of which shall be an original, but when taken
together shall constitute a single instrument.
Each party hereby acknowledges that the Proprietary Information is
being furnished to it by the other party in consideration of the agreement of
each party that it will not propose to the other party or any other person any
transaction between Cytyc and Digene and/or their respective security holders or
involving any of their respective securities or security holders unless the
other party shall have requested in writing that such party make such a
proposal, and that each party (including any of such party's officers, directors
or affiliates) will not acquire, or assist, advise or encourage any other
persons in acquiring, directly or indirectly, control of the other party or any
of the other party's securities, businesses or assets for a period of eighteen
(18) months from the date of this letter agreement unless the other party shall
have consented in advance in writing to such acquisition. The parties to this
agreement agree that the provisions of this paragraph shall not apply to a party
following any public announcement by the other party that it is seeking bids
from third parties for or enters into an agreement with any third party relating
to an acquisition of all or a substantial portion of the company or its assets,
or in the event a third party announces an offer to acquire more than 25% of the
voting securities or assets of such other party. Each party also agrees that the
other party shall be entitled to equitable relief, including injunction, in the
event of any breach of the provisions of this paragraph and that neither party
shall oppose the granting of such relief.
In order for Cytyc to have sufficient time to conduct a detailed
investigation of Digene and to justify undertaking the associated expense,
Digene agrees that for a period of ten (10) days from the date of Cytyc's
receipt of Digene's acceptance of this letter (such date being referred to as
the "Effective Date" and such 10 day period, together with any extension
thereof, the "Exclusivity Period"), Digene and its affiliates and their
respective directors, officers, employees, agents and representatives (including
financial advisors, attorneys and accountants) shall negotiate exclusively with
Cytyc concerning a sale of all or a substantial portion of Digene, and shall not
during the Exclusivity Period provide any information concerning Digene to any
other person or entity or otherwise initiate, solicit, encourage or entertain,
directly or indirectly, any inquiries or the making or modification of any
proposal relating to an acquisition of all or a substantial portion of Digene or
its assets, including by way of a license (an "Acquisition Proposal"). Digene
shall immediately cease any existing negotiations with any other parties
regarding an Acquisition Proposal. During the Exclusivity Period, Digene will
promptly notify Cytyc of the receipt after the date hereof of any Acquisition
Proposal or of any request for
Digene Corporation
February 13, 2002
Page 5
information relating to Digene or for access to the properties, books or records
of Digene by any person or entity who has informed Digene that such person or
entity is considering making, or has made, an Acquisition Proposal, which notice
shall include the identity of such person or entity, and will keep Cytyc
informed regarding the status of any such Acquisition Proposal. Digene shall
have the right to terminate the Exclusivity Period on three (3) days prior
written notice to Cytyc at any time on or after the seventh (7) day following
the Effective Date. In the absence of any such notice of termination by Digene,
the Exclusivity Period shall automatically be extended by one day on the 8th day
following the Effective Date and each day thereafter until Digene has provided
to Cytyc notice of termination of the Exclusivity Period; provided, however,
that the Exclusivity Period shall expire sixty (60) days following the Effective
Date unless Digene elects by notice to Cytyc to further extend such period; and
provided further that in the event a third party announces an offer to acquire
more than 25% of the voting securities or assets of Digene during the
Exclusivity Period, the Exclusivity Period shall terminate immediately.
The obligations of confidentiality hereunder shall expire on the
earlier of (a) the date a definitive agreement between the parties is signed,
provided that such definitive agreement includes provisions governing the
protection of the proprietary information of each party and (b) the date three
(3) years after the date of this letter agreement.
Cytyc and Digene each acknowledge that the other is and shall at all
times remain the sole owner of its Proprietary Information. Nothing in this
letter agreement shall be construed as granting any right or license to either
party's Proprietary Information for any purpose other than as set forth herein.
Without prejudice to the rights and remedies otherwise available to
each of the parties hereto, each such party shall be entitled to equitable
relief by way of injunction or otherwise if the other party or any of its
Representatives breaches or threatens to breach any of the provisions of this
letter agreement.
It is further 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 further exercise thereof or the exercise of any right, power or
privilege hereunder.
In the event that any one or more of the provisions contained in this
letter agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this letter agreement, and all other
provisions shall remain in full force and effect. If any provision of this
letter agreement is held to be excessively broad, it shall be reformed and
construed by limiting and reducing it so as to be enforceable to the maximum
extent permitted by law.
This letter agreement shall not be assigned by either party, by
operation of law or otherwise, without the prior written consent of the other
party.
Digene Corporation
February 13, 2002
Page 6
This letter agreement contains the entire agreement between Cytyc and
Digene concerning confidentiality of the Proprietary Information and the
exclusivity of the negotiations between the parties, and no modification of this
letter agreement or waiver of the terms and conditions hereof shall be binding
upon Cytyc or Digene, unless approved in writing by each of the parties hereto.
Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
Cytyc Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice Chairman and CEO
Accepted and Agreed as of
the date first written above:
Digene Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
