Exhibit 99.(d)(2)
May 24, 2000
VIA FACSIMILE
Confidentiality Agreement
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Dear Ladies and Gentlemen:
In order to evaluate a possible acquisition transaction (the "Proposed
Transaction") between InfrastruX Group, Inc. ("InfrastruX") and UTILX
Corporation ("UTILX"), each may disclose and deliver to the other party, upon
execution and delivery by InfrastruX and UTILX of this letter agreement, certain
information about its properties, employees, finances, businesses and operations
(such party when disclosing such information being the "Disclosing Party" and
such party when receiving such information being the "Receiving Party"). All
such information furnished by the Disclosing Party or its Representatives (as
defined below), whether furnished before or after the date hereof, whether oral
or written, and regardless of the manner in which it is furnished, is referred
to in this letter agreement as "Proprietary Information." Proprietary
Information does not include, however, information which (1) is or becomes
generally available to the public other than as a result of a disclosure by the
Receiving Party or its Representatives, (2) was available to the Receiving Party
on a nonconfidential basis prior to its disclosure by the Disclosing Party or
its Representatives or (3) becomes available to the Receiving Party on a
nonconfidential basis from a person other than the Disclosing Party or its
Representatives who is not otherwise bound by a confidentiality agreement with
the Disclosing Party or any of its Representatives, or is otherwise not under an
obligation to the Disclosing Party or any of its Representatives not to transmit
the information to the Receiving Party. As used in this letter agreement, the
term "Representative" means, as to any person, such person's affiliates and its
and their directors, officers, employees, agents, advisors (including, without
limitation, financial advisors, counsel and accountants) and controlling
persons. As used in this letter agreement, the term "person" shall be broadly
interpreted to include, without limitation, any corporation, company,
partnership, other entity or individual.
Subject to the immediately succeeding paragraph, unless otherwise
agreed to in writing by the Disclosing Party, the Receiving Party agrees (1)
except as required by law, regulation, legal process or regulatory authority to
keep all Proprietary Information confidential and not to disclose or reveal any
Proprietary Information to any person other than its Representatives who are
actively and directly participating in the evaluation of the Proposed
Transaction or who otherwise need to know the Proprietary Information for the
purpose of evaluating the Proposed Transaction and to cause those persons to
observe the terms of this letter
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agreement, (2) not to use Proprietary Information for any purpose other than in
connection with its evaluation of the Proposed Transaction or the consummation
of the Proposed Transaction and (3) except as required by law, regulation, legal
process or regulatory authority, not to disclose to any person (other than those
of its Representatives who are actively and directly participating in the
evaluation of the Proposed Transaction or who otherwise need to know for the
purpose of evaluating the Proposed Transaction and, in the case of each such
Representative, whom it will cause to observe the terms of this letter
agreement) any information about the Proposed Transaction, or the terms or
conditions or any other facts relating thereto, including, without limitation,
the fact that discussions are taking place with respect thereto or the status
thereof, or the fact that Proprietary Information has been made available to the
Receiving Party or its Representatives. The Receiving Party will be responsible
for any breach of the terms of this letter agreement by the Receiving Party or
any of its Representatives.
In the event that the Receiving Party is requested pursuant to, or
required by, applicable law, regulation or regulatory authority or stock
exchange rule or by legal process to disclose any Proprietary Information or any
other information concerning the Disclosing Party or the Proposed Transaction,
the Receiving Party agrees that it will provide the Disclosing Party with prompt
notice of such request or requirement in order to enable the Disclosing Party to
seek an appropriate protective order or other remedy, to consult with the
Receiving Party with respect to the Disclosing Party taking steps to resist or
narrow the scope of such request or legal process, or to waive compliance, in
whole or in part, with the terms of this letter agreement. In the event that no
such protective order or other remedy is obtained or that the Disclosing party
waives compliance with the terms of this letter agreement, the Receiving Party
will furnish only that portion of any Proprietary Information which the
Receiving Party is advised by counsel is legally required and will exercise all
reasonable efforts to obtain reliable assurance that confidential treatment will
be accorded any Proprietary Information.
The parties hereto are aware, and each party will advise its
Representatives who are informed of the matters that are the subject of this
letter agreement, of the restrictions imposed by the United States securities
laws on the purchase or sale of securities by any person who has received
material, non-public information from the issuer of such securities and on the
communication of such information to any other person when it is reasonably
foreseeable that such person is likely to purchase or sell such securities in
reliance upon such information.
The Receiving Party acknowledges that neither the Disclosing Party nor
any of its Representatives makes any express or implied representation or
warranty as to the accuracy or completeness of any Proprietary Information, and
the Receiving Party agrees that none of such persons shall have any liability to
the Receiving Party or any of its Representatives relating to or arising from
the use of any Proprietary Information by the Receiving Party or any of its
Representatives or for any errors therein or omissions therefrom. The Receiving
Party also agrees that it is not entitled to rely on the accuracy or
completeness of any Proprietary Information and that it shall be entitled to
rely solely on such representations and warranties regarding Proprietary
Information as may be made to it in any final acquisition agreement relating to
the Proposed Transaction, subject to the terms and conditions of such agreement.
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Each party hereto agrees that, without the prior written consent of
the other party, it will not for a period of two years from the date hereof
directly or indirectly solicit for employment or employ any person who is now
employed by the other party and who is identified as a result of any evaluation
or otherwise in connection with the Proposed Transaction; provided, however,
that neither party shall be prohibited from employing any such person who
contacts such party on his or her own initiative and without any direct or
indirect solicitation by such party.
If either party hereto determines that it does not wish to proceed
with the Proposed Transaction, it will promptly advise the other party of that
decision. In such case, or in the event that the Proposed Transaction is not
consummated by InfrastruX and UTILX, each party will promptly return to the
other party all copies of Proprietary Information in its possession or in the
possession of any of its Representatives and will not retain any copies or other
reproductions in whole or in part of such material. All other documents,
memoranda, notes, summaries, analyses, extracts, compilations, studies or other
material whatsoever prepared by it or any of its Representatives based on the
Proprietary Information will be destroyed, and such destruction will be
certified in writing to the other party by an authorized officer supervising
such destruction. Any oral Proprietary Information will continue to be the
subject of this letter agreement.
Each party agrees that all inquiries, requests for information and
other communications with the other party or such other party's Representatives
shall only be made through or with the consent of the Chief Executive Officer of
such other party or any designee thereof.
Each party agrees that, for a period of two years from the date of
this letter agreement, unless such party shall have been specifically invited in
writing by the other party, neither party nor any of its affiliates (as such
term is defined under the Securities Act of 1934, as amended (the "1934 Act"))
or Representatives will in any manner, directly or indirectly, (1) effect or
seek, offer or propose (whether publicly or otherwise) to effect, or assist any
other person to effect or seek, offer or propose (whether publicly or otherwise)
to effect or participate in, (i) any acquisition of any securities (or
beneficial ownership thereof) or assets of the other party or any of its
subsidiaries; (ii) any tender or exchange offer, merger or other business
combination involving the other party or any of its subsidiaries; (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the other party or any of its subsidiaries; or (iv)
any "solicitation" of "proxies" (as such terms are used in the proxy rules of
the Securities and Exchange Commission) or consents to vote any voting
securities of the other party; (2) form, join or in any way participate in a
"group" (as defined under the 1934 Act); (3) otherwise act, alone or in concert
with others, to seek to control or influence the management, Board of Directors
or policies of the other party; (4) take any action which might force the other
party to make a public announcement regarding any of the types of matters set
forth in (1) above; or (5) enter into any discussions or arrangements with any
third party with respect to any of the foregoing. The foregoing restrictions
will not affect Xxxx Xxxxxx'x ability to perform his duties and responsibilities
as a director of UTILX or to receive stock or rights to acquire stock of UTILX
pursuant to any compensatory plan for directors of
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UTILX, except that it is expected that Xx. Xxxxxx will not participate as a
director of UTILX in any matters presented to the Board of Directors of UTILX
regarding the Proposed Transaction.
Each of InfrastruX and UTILX agree that until a final agreement
regarding the Proposed Transaction has been executed by InfrastruX and UTILX,
none of InfrastruX, UTILX or any of their respective Representatives is under
any legal obligation and, in the case of InfrastruX and its Representatives
shall have no liability to UTILX and, in the case of UTILX and its
Representatives shall have no liability to InfrastruX, in each case of any
nature whatsoever with respect to the Proposed Transaction by virtue of this
letter agreement or otherwise. Each of InfrastruX and UTILX also acknowledge
and agree that (1) InfrastruX Representatives and UTILX Representatives, as the
case may be, may conduct the process that may or may not result in the Proposed
Transaction in such manner as each of InfrastruX or UTILX, in its sole
discretion, may determine (including, without limitation, negotiating and
entering into a final acquisition agreement with any third party without notice
to InfrastruX or UTILX, as the case may be) and (2) each of InfrastruX and UTILX
reserves the right to change (in its sole discretion, at any time and without
notice to UTILX or InfrastruX, as the case may be) the procedures relating to
InfrastruX's or UTILX's, as the case may be, consideration of the Proposed
Transaction (including, without limitation, terminating all further discussions
with UTILX or InfrastruX, as the case may be, and requesting that UTILX or
InfrastruX return all Proprietary Information to InfrastruX or UTILX, as the
case may be).
Without prejudice to the rights and remedies otherwise available to
each of the parties hereto, each such party shall be entitled to equitable
relief by way of injunction or otherwise if the other party or any of its
Representatives breaches or threatens to breach any of the provisions of this
letter agreement.
It is further understood and agreed that no failure or delay by either
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
This letter agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State of
Washington.
This letter agreement shall not be assigned by either party, by
operation of law or otherwise, without the prior written consent of the other
party.
This letter agreement contains the entire agreement between InfrastruX
and UTILX concerning confidentiality of the Proprietary Information, and no
modification of this letter agreement or waiver of the terms and conditions
hereof shall be binding upon InfrastruX or UTILX, unless approved in writing by
each of the parties hereto.
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Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
UTILX CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Accepted and Agreed as of
the date first written above:
INFRASTRUX GROUP, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Chief Executive Office
