Exhibit 99.(d)(3)
April 17, 2001
Xx. Xxxx X. Xxxxxx
President and Chief Executive Officer
Vysis, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
CONFIDENTIALITY AGREEMENT
Dear Xxxx:
In connection with our possible interest in the acquisition (the
"Transaction") of Vysis, Inc. ("you" or the "Company"), we have requested
that you or your representatives furnish us or our representatives with
certain information relating to the Company or the Transaction. All such
information (whether written or oral) furnished by you or your directors,
officers, employees, affiliates, representatives (including, without
limitation, financial advisors, attorneys and accountants) or agents
(collectively, "your Representatives") to us or our directors, officers,
employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys and accountants) or agents (collectively, "our
Representatives") and all analyses, compilations, forecasts, studies or other
documents prepared by us or our Representatives in connection with our or
their review of, or our interest in, the Transaction which contain or reflect
any such information is hereinafter referred to as the "Information". The
term Information will not, however, include information which: (i) is or
becomes publicly available other than as a result of an unauthorized
disclosure by us or our Representatives; (ii) is or becomes available to us
on a non-confidential basis; (iii) is in our possession prior to disclosure
hereunder, as evidenced by our written records; or (iv) is independently
developed by or for us or our Representatives without reference to
Information.
Accordingly, the parties hereby agree as follows:
1. We and our Representatives: (a) will keep the Information confidential
and will not (except as required by applicable law, regulation or legal
process, and only after compliance with paragraph 3 below), without your
prior written consent, disclose any Information in any manner whatsoever;
and (b) will not use any Information other than in connection with the
Transaction; PROVIDED, HOWEVER, that we may reveal the Information to our
Representatives: (x) who need to know the Information for the purpose of
evaluating the Transaction; (y) who are informed by us of the
confidential nature of the Information; and (z) who agree to act in
accordance with the terms of this letter
agreement. We will cause our Representatives to observe the terms of
this letter agreement, and we will be responsible for any breach of this
letter agreement by any of our Representatives.
2. We and our Representatives will not (except as required by applicable
law, regulation or legal process, and only after compliance with
paragraph 3 below), without your prior written consent, disclose to any
person the fact that the Information exists. Further, each party and its
Representatives will not (except as required by applicable law,
regulation or legal process, and only after compliance with paragraph 3
below), without the other party's prior written consent, disclose to any
person the fact that the Information has been made available to us, that
we are considering the Transaction, or that discussions or negotiations
are taking or have taken place concerning the Transaction or any term,
condition or other fact relating to the Transaction or such discussions
or negotiations, including, without limitation, the status thereof.
3. In the event that we or any of our Representatives are requested
pursuant to, or required by, applicable law, regulation or legal process
to disclose any of the Information, we will notify you promptly so that
you may seek, at your sole expense, a protective order or other
appropriate remedy or, in your sole discretion, waive compliance with
the terms of this letter agreement. In the event that no such protective
order or remedy is obtained, or that the Company does not waive
compliance with the terms of this letter agreement, we will furnish only
that portion of the Information which we are advised by counsel is
legally required and will exercise all reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded the
Information.
4. If we determine not to proceed with the Transaction, we will promptly
inform you of that decision and, in that case, and at any time upon the
request of the Company or any of your Representatives, we will either:
(a) promptly destroy all copies of the written Information in our or our
Representatives' possession and confirm such destruction to you in
writing; or (b) promptly deliver to the Company at our own expense all
copies of the written Information in our or our Representatives'
possession; PROVIDED, HOWEVER, we may retain one copy of the Information
in our counsel's files for archival purposes.
5. We acknowledge that neither you, nor your Representatives, nor any of
your or their respective officers, directors, employees, agents or
controlling persons within the meaning of Section 20 of the Securities
Exchange Act of 1934, as amended, makes any express or implied
representation or warranty as to the accuracy or completeness of the
Information, and we agree that no such person will have any liability
relating to the Information or for any errors therein or omissions
therefrom. We further agree that we are not entitled to rely on the
accuracy or completeness of the Information. Each party shall be entitled
to rely solely on such representations and warranties as may be included
in any definitive agreement with respect to the Transaction, subject to
such limitations and restrictions as may be contained therein.
6. We agree that until such time as we have determined not to proceed
with the Transaction and have notified you of such pursuant to
paragraph 4 herein and for a period of one year thereafter, we will not,
directly or indirectly, solicit for employment (other than through
general advertising that is not focused on the Company) or hire any
employee of the Company or any of its subsidiaries with whom we have had
contact or who became known to us in connection with our consideration
of the Transaction. The restriction set forth in this paragraph 6 shall
only apply to our diagnostic division.
7. We acknowledge and agree that: (a) you and your Representatives are
free to conduct the process leading up to a possible Transaction as you
and your Representatives, in your sole discretion, determine; and (b)
you reserve the right, in your sole discretion, to change the procedures
relating to your consideration of the Transaction at any time without
prior notice to us or any other person, to reject any and all proposals
made by us or any of our Representatives with regard to the Transaction
and to terminate discussions and negotiations with us at any time and for
any reason. Except as otherwise provided herein, unless and until a
written definitive agreement concerning the Transaction has been
executed, neither party nor any of its Representatives will have any
liability to the other party or its Representatives with respect to the
Transaction, whether by virtue of this letter agreement, any other
written or oral expression with respect to the Transaction or otherwise.
8. Each party acknowledges that remedies at law may be inadequate to
protect such party against any actual or threatened breach of this
letter agreement by the other party or by its Representatives. In the
event of litigation relating to this letter agreement, if a court or
competent jurisdiction determines in a final, non-appealable order that
this letter agreement has been breached by a party or by its
Representatives, then the breaching party will reimburse the
non-breaching party for its costs and expenses (including, without
limitation, legal fees and expenses) incurred in connection with all
such litigation.
9. No failure or delay by either party in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any single
or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege hereunder.
10. This letter agreement will be governed by and construed in accordance
with the laws of the State of Illinois applicable to contracts between
residents of that state and executed in and to be performed in that
state.
11. This letter agreement contains the entire agreement between you and us
concerning the confidentiality of the Information, and no modifications
of this letter agreement or waiver of the terms and conditions hereof
will be binding upon you or us, unless approved in writing by each of you
and us.
12. Except as otherwise provided herein, the term of this letter agreement
is one (1) year from the date signed below. Our obligations of
confidentiality and nonuse shall terminate four (4) years from the date
signed below.
Please confirm your agreement with the foregoing by signing, dating and
returning to the undersigned a duplicate copy of this letter enclosed
herewith.
Very truly yours,
XXXXXX LABORATORIES
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Senior Vice President, Diagnostic Operations
Accepted and Agreed as of the date signed below:
Vysis, Inc.
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer
Date: 4/19/01
-----------------
August 21, 2001
[LETTERHEAD]
VIA FACSIMILE
AND COURIER
Vysis, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxxx
President and Chief Executive Officer
Dear Xxxx:
Reference is made to the Confidentiality Agreement between Xxxxxx
Laboratories ("Abbott") and Vysis, Inc. ("Vysis") dated April 17, 2001 (the
"Confidentiality Agreement"). The parties wish to amend the Confidentiality
Agreement to ensure that any Information (whether written or oral) disclosed
by Abbott or our Representatives to Vysis or its Representatives is
maintained as confidential by Vysis and its Representatives according to the
terms of the Confidentiality Agreement as if the Confidentiality Agreement
were originally drafted to include such obligations. Except as otherwise
defined in this letter, terms used in this letter are used as defined in the
Confidentiality Agreement.
Abbott and Vysis agree that, effective as of the date of this letter,
the Confidentiality Agreement shall be amended so that:
(a) the term "Information" also includes information (whether
written or oral) relating to us or the Transaction furnished
hereunder by us or our Representatives to you or your
Representatives;
(b) the obligations of Paragraphs 1, 3 and 4 as well as the first
sentence of Paragraph 2, the first two sentences of Paragraph 5
and the first sentence of Paragraph 6 are mutual for you and your
Representatives;
(c) the references to "we", "us", "our" and "our Representatives"
shall be read, respectively, as "you", "you", "your" and "your
Representatives" when referring to your rights and obligations
under the Confidentiality Agreement; and
(d) Paragraph 12 is restated in its entirety to read:
Except as otherwise provided herein, the term of this
letter agreement is one (1) year from April 19, 2001.
The parties' obligations of confidentiality and nonuse
shall terminate four (4) years from April 19, 2001.
Except as provided herein, the Confidentiality Agreement shall remain
unchanged and in full force and effect. This amendment shall be governed by,
and construed in accordance with, the laws of the State of Illinois, and may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same document.
Xx. Xxxx X. Xxxxxx
August 21, 2001
Page 2
Please confirm that the foregoing is in accordance with your understanding by
executing and dating both originals and returning one original of this letter
to me. Upon my receipt of a faxed copy of the letter signed by you (fax no.
000-000-0000), this letter and your acceptance shall constitute a binding
agreement between Abbott and Vysis.
Sincerely,
XXXXXX LABORATORIES
By: /s/Xxxxx X. Xxxxx Xx.
-----------------------
Xxxxx X. Xxxxx Xx.
Vice President, Corporate
Planning and Development
Accepted and Agreed as of August 21, 2001:
VYSIS, INC.
By: /s/Xxxx X. Xxxxxx
----------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer