EXHIBIT (d)(2)
CONFIDENTIALITY AGREEMENT
BETWEEN
DevX Energy, Inc., a Delaware corporation, having an
office at 00000 Xxxx Xxxx, Xxxxx 0000, Xxxxxx, XX
00000-0000 (fax 000-000-0000)
(Hereinafter referred to as "DEVX")
AND
Xxxxxxxx Resources, Inc., 0000 Xxxx xxx Xxxxxxx
Xxxx., Xxxxx 000, Xxxxxx, XX 00000 (fax: 972-668-
8882)
(Hereinafter referred to as "XXXXXXXX")
WHEREAS, the parties wish to explore possible merger or acquisition
transactions ("Transaction");
AND WHEREAS, DEVX has agreed to make available to XXXXXXXX certain
Confidential Information (as hereinafter defined) pursuant to the terms of this
agreement.
THEREFORE, in consideration of and to induce DEVX to provide such
Confidential Information, XXXXXXXX agrees to treat all Confidential Information
supplied by DEVX in accordance with the provisions of this agreement.
1. Confidential Information shall mean all written, computer readable or other
tangible forms of information, documents, memoranda, or other materials
pertaining to and prepared by or on behalf of DEVX, or any of its
respective subsidiaries and affiliates, or any of the business, properties
and assets thereof, including, without limitation, production reports,
reserve reports, exploration programs or targets, workover programs,
capital expenditures, proposed or ongoing property acquisitions or
divestments, employee lists and evaluation reports and financial and
performance reports, plans or projections.
2. Notwithstanding the foregoing, Confidential Information shall not include
information which (i) is or becomes generally available to the public as a
result of an authorized disclosure by a party, or (ii) is or becomes
available to XXXXXXXX on a non-confidential basis from another source
provided that such source is not bound by a confidentiality agreement with
or other obligation or secrecy to or for the benefit of DEVX.
3. XXXXXXXX agrees to utilize the Confidential Information only for the
purpose of evaluating a Transaction between the parties and preparing
proposals with respect thereto and shall protect the confidentiality of the
Confidential Information with the same degree of care, but in any case no
less than a reasonable standard of care, as it uses to protect its own
Confidential Information. XXXXXXXX shall bear its own risk and cost of
evaluating the Confidential Information.
4. XXXXXXXX shall not disclose the Confidential Information to any third
party, except (i) to its employees and third party consultants on a
need-to-know basis, or (ii) pursuant to an express written authorization by
DEVX, or (iii) pursuant to an order of a court of competent jurisdiction or
other judicial or quasi-judicial body. XXXXXXXX shall immediately notify
DEVX of any court process or other legal or administrative proceeding under
which it may become liable to disclose any Confidential Information and
will use its best efforts to cooperate with and assist DEVX to make
whatever representations it may deem appropriate to contest or appeal such
orders provided that all such contests or appeals shall be at the expense
of DEVX.
5. XXXXXXXX shall direct all employees and third party consultants to whom it
provides access to Confidential Information not to disclose such
Confidential Information or the fact that any discussions or negotiations
are taking place between the parties and shall remain liable for any
unauthorized disclosure or use of Confidential Information by such
employees or third party consultants notwithstanding such direction.
6. The restrictions on use and disclosure of the Confidential Information set
out herein shall continue for two (2) years from the date hereof regardless
of whether the parties enter into a definitive agreement concerning a
Transaction.
7. The parties further acknowledge and agree that, except with respect to the
matters specifically addressed in this agreement, unless and until they
execute and deliver a definitive agreement concerning a Transaction, (i)
neither of them is under any obligation whatsoever with respect to each
other whether by virtue of this agreement or any other understanding or
agreement, either written or oral, and (ii) DEVX may, without prior or any
notice to XXXXXXXX, make, entertain or solicit similar offers from one or
more third parties or conduct any process with respect thereto as either in
its sole discretion may determine, including without limitation, the
negotiation or execution of preliminary or definitive agreements to the
exclusion of XXXXXXXX, provided that XXXXXXXX shall not, for a period of
two (2) years from the date hereof, participate directly or indirectly in
any transaction pertaining to any publicly traded securities of DEVX that
has not been approved of by the Board of Directors of DEVX.
8. XXXXXXXX agrees that upon written request from DEVX all Confidential
Information furnished by DEVX and any copies thereof will be immediately
returned to DEVX, or with DEVX's written agreement, will be destroyed by
XXXXXXXX.
9. This agreement shall be governed by the laws of the State of Texas. The
language used in this agreement shall be deemed to have been mutually
chosen by the parties to express their mutual intent.
10. XXXXXXXX agrees that the unauthorized release of Confidential Information
of DEVX will cause irreparable harm to DEVX and any breach of this
agreement may be restrained by interim or permanent injunction and XXXXXXXX
waives any requirement on DEVX to prove balance of convenience or actual
harm or to post security in support of any such injunction application.
11. In the event that a court of competent jurisdiction determines that any
portion of this agreement is unenforceable, such court may reform such
portions in a manner consistent with the intent of the parties, but in any
event the remainder of the agreement shall continue in full force and
effect.
12. This agreement may be executed by telefax and in two (2) or more
counterparts, each of which shall be deemed to be an original and all of
which shall constitute one (1) agreement.
AGREED TO AND ACCEPTED this 16th day of January, 2001.
DevX Energy, Inc. Xxxxxxxx Resources, Inc.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
-------------------- ---------------------
By: Xxxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
Title: President and CEO Title: Vice President - Corporate
Development
2
