Exhibit 99.(d)(4)
August 21, 2001 VIA FACSIMILE
AND COURIER
Xx. Xxxxxx Xxxxxxxx
Manager, Mergers and Acquisitions
BP Corporation North America Inc.
Mail Code 2403
000 X Xxxxxxxx Xx.
Xxxxxxx, XX 00000
CONFIDENTIALITY AGREEMENT
Dear Xx. Xxxxxxxx:
In connection with our possible interest in the acquisition of BP
Corporation North America Inc.'s ("BP") equity interest in Vysis, Inc. (the
"Company") or in the total acquisition of the Company (the "Transactions"),
we have requested that you or your representatives furnish us or our
representatives with certain information relating to the Company or the
Transactions. All such information (whether written or oral) furnished by you
or your directors, officers, employees, affiliates (not including the Company
with whom Abbott has a separate confidentiality agreement regarding the
Transactions), representatives (including, without limitation, financial
advisors (e.g. UBS Warburg), 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 Transactions which contain or
reflect any such information is hereinafter referred to as the "Information".
The term "Information" shall also include information (whether written or
oral) relating to us or the Transactions furnished hereunder by us or our
Representatives to you or your Representatives. 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 in connection with the
Transactions (whether on, before or after the date of this letter agreement),
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:
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August 21, 2001
Page 2
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
Transactions; PROVIDED, HOWEVER, that we may reveal the Information to
our Representatives: (x) who need to know the Information for the purpose
of evaluating the Transactions; (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.
You and your 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 our
prior written consent, disclose any Information in any manner whatsoever;
and (b) will not use any Information other than in connection with the
Transactions; PROVIDED, HOWEVER, that you may reveal the Information to
your Representatives: (x) who need to know the Information for the
purpose of evaluating the Transactions; (y) who are informed by you of
the confidential nature of the Information; and (z) who agree to act in
accordance with the terms of this letter agreement. You will cause your
Representatives to observe the terms of this letter agreement, and you
will be responsible for any breach of this letter agreement by any of
your representatives. Notwithstanding the above provisions, you and your
Representatives may disclose Information to the Company which has a
Confidentiality Agreement with us executed April 19, 2001, as amended,
that relates to the Transactions.
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. You and your Representatives
will not (except as required by applicable law, regulation or legal
process, and only after compliance with paragraph 3 below), without our
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
Transactions, or that discussions or negotiations are taking or have
taken place concerning the Transactions or any term, condition or other
fact relating to the Transactions or such discussions or negotiations,
including, without limitation, the status thereof. Notwithstanding the
above provisions, you and your Representatives may disclose Information
to the Company which has a Confidentiality Agreement with us executed
April 19, 2001, as amended, that relates to the Transactions.
Xx. Xxxxxx Xxxxxxxx
August 21, 2001
Page 3
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 other remedy is obtained, or that you do 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.
In the event that you or any of your Representatives are requested
pursuant to, or required by, applicable law, regulation or legal process
to disclose any of the Information, you will notify us promptly so that
we may seek, at our sole expense, a protective order or other appropriate
remedy or, in our sole discretion, waive compliance with the terms of
this letter agreement. In the event that no such protective order or
other remedy is obtained, or that we do not waive compliance with the
terms of this letter agreement, you will furnish only that portion of
the Information which you 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 Transactions, we will promptly
inform you of that decision and, in that case, and at any time upon the
request of you 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 you 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.
If you determine not to proceed with the Transactions, you will promptly
inform us of that decision and, in that case, and at any time upon the
request of us or any of our Representatives, you will either:
(a) promptly destroy all copies of the written Information in your or
your Representatives' possession provided by or related to us and confirm
such destruction to us in writing; or (b) promptly deliver to us at your
own expense all copies of the written Information in your or your
Representatives' possession provided by or related to us; PROVIDED,
HOWEVER, you may retain one copy of the Information in your counsel's
files for archival purposes.
5. Each party acknowledges that neither the party, nor the party's
Representatives, nor any of the party's or its Representatives'
respective officers, directors,
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August 21, 2001
Page 4
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 each party agrees that no such person will have any
liability relating to the Information or for any errors therein or
omissions therefrom. Each party further agrees that it is 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 Transactions,
subject to such limitations and restrictions as may be contained therein.
6. We acknowledge and agree that: (a) you and your Representatives are
free to conduct the process leading up to the possible Transactions as
you and your Representatives, in your sole discretion, determine; (b)
you reserve the right, in your sole discretion, to change the procedures
relating to your consideration of the Transactions 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 Transactions
and to terminate discussions and negotiations with us at any time and for
any reason; and (c) we will not contact the Company or any of its
directors, officers, agents or employees for the purpose of pursuing the
Transactions without your prior written consent. Unless and until a
written definitive agreement concerning the Transactions has been
executed, neither party nor any of its Representatives will have any
obligations to the other party or its Representatives with respect to the
Transactions, whether by virtue of this letter agreement, any other
written or oral expression with respect to the Transactions or otherwise.
7. 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 of
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.
8. 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.
9. 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 this letter
agreement.
Xx. Xxxxxx Xxxxxxxx
August 21, 2001
Page 5
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 of this letter agreement. The parties'
obligations of confidentiality and nonuse shall terminate four (4) years
from the date of this letter agreement.
Please confirm your agreement with the foregoing by signing and returning to
the undersigned the duplicate copy of this letter enclosed herewith.
Very truly yours,
XXXXXX LABORATORIES
By: /s/ Xxxxx X. Xxxxx, Xx.
-----------------------
Xxxxx Xxxxx Xx.
Vice President, Corporate Planning
and Development
Accepted and Agreed as of the date first written above:
BP Corporation North America Inc.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Xxxxxx Xxxxxxxx
Manager, Mergers and Acquisitions
