Exhibit (d)(2)
CONFIDENTIALITY AGREEMENT
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Xxxxxxx Corporation (also defined as "we," "us" or "our") has requested
confidential information ("Information") regarding Xxxx Scientific (the
"Company," "you" or "your") for the purposes of evaluating a possible negotiated
acquisition (the "Transaction") of certain Company assets by Xxxxxxx. It is
understood and agreed that this Agreement creates no obligation to enter into
any Transaction or any agreement relating to a Transaction. To induce the
Company to furnish the Information to us, we hereby agree on February 27, 2001
as follows:
1. Except as provided in paragraph 4, all Information will be kept
confidential by us, except that we may disclose or make available Information
(i) to our directors, officers and employees and to representatives of our
advisors and lenders and their advisors for the exclusive purpose of assisting
us in the evaluation of a possible Transaction, or (ii) as otherwise required,
upon advice of our counsel, by applicable United States law. We will not use,
or permit any of our representatives to use, any of the Information for any
purpose other than the evaluation of a possible Transaction, and, except as may
be required by law.
2. Each of the Company and us may disclose, only to the extent required
by applicable law, the fact that we are engaged in discussions with the Company
regarding a Transaction, the fact that the Information has been made available
to us and any other aspect of this Agreement.
3. In the event that we are requested in any proceeding to disclose any
Information received by you, we will give you prompt notice of such request so
that you may seek an appropriate protective order. If in the absence of a
protective order we are nonetheless compelled to disclose any such Information
or matter, we may disclose such Information or matter without liability
hereunder, provided that we give you written notice of its disclosure as is
practicable.
4. The restrictions with respect to Information set forth in paragraph 1
shall not apply to any Information furnished to us by the Company or its
representatives which (i) is on the date hereof or hereafter becomes generally
available to the public other than as a result of a disclosure, directly or
indirectly, by us or our representatives or (ii) was available to us on a non-
confidential basis, in each case from a source other than the Company or its
representatives, which source was not itself known to us to be bound by a
confidentiality agreement with the Company or its representatives and had not
received such information, directly or indirectly, from a person known to us to
be so bound, or (iii) was developed independently by us, as shown through
supporting documentation.
5. Except as may result from a definitive agreement between the parties
hereto with respect to a Transaction, the Company does not make any
representation or warranty as to the accuracy or completeness of the Information
provided to us, and the Company shall not have any liability resulting from the
use of the Information by us or any of our representatives.
6. Upon request at any time, we will promptly redeliver to you or destroy
all copies of documents containing information and will promptly destroy all
memoranda, notes and other writings prepared by us based on such Information.
If a potential transaction is terminated for any reason, Xxxxxxx and Fluke will
return to the Company or destroy all documentation and any and all notes that
were made during the process of reviewing the transaction.
7. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original but such counterpart
shall constitute one and the same instrument.
8. This Agreement contains the entire understanding of the parties hereto
with respect to the matters covered hereby and may be amended only by an
agreement in writing executed by the Company and us.
9. This Agreement shall be binding upon, inure to the benefit of and be
enforceable by our respective successors and assigns. This Agreement shall be
in effect for a period of two years from the date it was executed.
10. This Agreement shall be governed by and construed in accordance with
the internal laws (as opposed to conflict of law provisions) of the State of
Delaware.
If the foregoing correctly sets forth our agreement as to the matters set
forth herein, please confirm our agreement by executing and returning a copy of
this Agreement to the undersigned.
Very truly yours,
XXXXXXX CORPORATION
By: /s/ Xxxx Xxxxxx
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Xxxx X. Xxxxxx
Manager, Corporate Development
The foregoing items are agreed to:
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: CEO, Xxxx Scientific
Date: February 27, 2001
