Re: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Exhibit
99.2
May 6,
2009
Merge
Healthcare Incorporated (“Recipient”) has requested certain information from
etrials Worldwide, Inc. (the “Company”) in connection with a possible
transaction involving the Company (a “Possible Transaction”). In
particular, Recipient has requested financial and other information concerning
the Company (the “Evaluation Material”). The “Evaluation Material,”
whether furnished to Recipient before or after the date of this Confidentiality
Agreement, includes this Confidentiality Agreement and any negotiations between
the Company and the Recipient regarding the Possible Transaction together with
all analyses, compilations, studies or other documents or records prepared by
the Company, the Recipient or their Representatives (as hereafter defined) which
contain or otherwise reflect or are generated from such information, as well as
all copies and other reproductions thereof, whether oral, in writing or stored
or maintained in or by electronic, magnetic or other means, media or devices,
but does not include information which (i) was or becomes generally available to
the public other than as a result of a disclosure by the Recipient or its
directors, officers, employees, shareholders, agents or advisors (all of the
foregoing collectively referred to as “Representatives”), or the respective
Representatives of the Recipient’s agents or advisors, (ii) was or becomes
available to Recipient on a non-confidential basis from a source other than the
Company or its Representatives, provided that such source is not bound by a
confidentiality agreement with the Company or otherwise prohibited from
transmitting the information to Recipient or (iii) was within Recipient’s
possession prior to its being furnished by or on behalf of the Company, provided
that the source of such information was not bound by a confidentiality agreement
with the Company in respect thereof or otherwise prohibited from transmitting
the information to the Recipient.
In
consideration of Recipient being furnished with any Evaluation Material,
Recipient agrees as follows:
1. Recipient
acknowledges the competitive value and confidential nature of the Evaluation
Material and the damage that could result to the Company if information
contained therein is disclosed to any third party.
2. The
Evaluation Material will be used solely for the purpose of evaluating a Possible
Transaction. Recipient and its Representatives will keep the
Evaluation Material confidential and will not disclose any of such Evaluation
Material to any third party without the prior written consent of the Company;
provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation
Material may be disclosed (a) to the extent required by applicable law or legal
process, or (b) to Recipient’s Representatives who need to know the information
contained in the Evaluation Material for the purpose of evaluating a Possible
Transaction and who are informed of the confidential and non-public nature of
the Evaluation Material and are directed and agree to treat such Evaluation
Material confidentially. In any event, Recipient is responsible for
any improper use by its Representatives of the Evaluation Material.
3. The
Company makes no representations or warranties as to the accuracy or
completeness of any Evaluation Material, and has no liability to Recipient
resulting from the use of the Evaluation Material supplied by the Company or any
of its Representatives except as may be provided in a definitive agreement in
connection with a Possible Transaction.
4. Upon the
written request of the Company, all Evaluation Materials (and all copies,
extracts or other reproductions in whole or in part thereof) of the Company,
whether in writing or stored or maintained in or by electronic, magnetic or
other means, media or devices, must be returned or, at the election of
Recipient, destroyed by an authorized officer and not retained in any form or
for any reason.
5. Notwithstanding
anything to the contrary set forth herein, in the event that Recipient or its
Representatives are requested or become legally compelled (by oral questions,
interrogatories, request for information or documents, subpoena, civil
investigative demand or similar process) to disclose any of the Evaluation
Material or take any other action prohibited hereby, the Recipient will promptly
notify the Company in writing so that the Company may seek a protective order or
other appropriate remedy and/or so that it may waive compliance with the
provisions of this Confidentiality Agreement. In the event that such
protective order or other remedy is not sought or obtained or that the
compliance with the provisions of this Confidentiality Agreement is waived, only
that portion of the Evaluation Material requested may be furnished or only such
action which is legally required may be taken, and Recipient shall exercise its
best efforts to obtain assurance that confidential treatment will be accorded
such Evaluation Material.
6. By
accepting the Evaluation Material, Recipient acknowledges and agrees that
certain information contained in this agreement and the Evaluation Material
might constitute material, non-public information. As a result,
Recipient agrees that it may not purchase, sell or otherwise
trade in the Company’s securities or any derivatives thereof until such time as
Recipient, based on the advice of counsel, determines that the Evaluation
material does not constitute material, non-public information.
7. The
Recipient may not propose to any person or entity other than the Company any
transaction between the Recipient and the Company and/or its security holders
involving the Company’s securities or security holders unless the Company
requests in writing that Recipient makes such a proposal. Recipient
may not acquire, or assist, advise or encourage any other persons in acquiring,
directly or indirectly, (1) control of the Company, including but not limited to
acquiring control by nominating person(s) to serve on the Company’s board of
directors, (2) more than 2% of any outstanding class of securities of the
Company or any voting or economic interest therein, or (3) substantially all of
the Company’s business or assets, in each case, for a period of two years from
the date of this Confidentiality Agreement unless the Company consents in
advance in writing to such acquisition. The Company is entitled to
equitable relief, including injunction, in the event of any breach of the
provisions of this paragraph.
8. This
agreement is governed by and must be construed in accordance with the laws of
the State of Delaware applicable to contracts made and to be performed entirely
within such State without giving effect to the principles of conflict of laws
thereof. The courts of the State of Delaware and the United States
District Courts located in Delaware have jurisdiction with respect to any
dispute or controversy arising under or in connection with this
agreement. In view of the confidential nature of the Evaluation
Material and the serious and irreparable damage that will result if any of the
Evaluation Material is disclosed to or used by any person or entity in violation
of this agreement, the Company is entitled to equitable relief to enjoin any
breach or threatened breach of this agreement. Recipient’s
obligations hereunder are in addition to, and not exclusive of, any and all of
Recipient’s other obligations and duties to the Company, whether express or
implied, in fact or in law. Any failure by the Company to enforce
Recipient’s strict performance of any provision of this agreement does not
constitute a waiver of the Company’s right to subsequently enforce that or any
other provision.
9. This
agreement may be executed via facsimile transmission and may be executed in
separate counterparts, each of which is an original and which together
constitutes a single instrument.
Please
acknowledge your agreement to the foregoing by countersigning this letter in the
place provided below and returning it to the attention of the
undersigned.
Very
truly yours,
ETRIALS
WORLDWIDE, INC.
By: /s/ M. Xxxxx
Xxxxxxxxx
President and Chief Executive
Officer
AGREED TO
AND ACCEPTED:
MERGE
HEALTHCARE INCORPORATED
By: /s/ Xxx
Xxxxxxxx-French
Name: Xxx
Xxxxxxxx-French
Title: V.P., General Counsel
& Secretary
Date: May 6,
2009
