CONFIDENTIALITY AGREEMENT
Exhibit 99(e)(2)
October 12,
2007
Reckitt Benckiser plc
000-000 Xxxx Xxxx
Xxxxxx
Xxxxx
XX0 0XX
000-000 Xxxx Xxxx
Xxxxxx
Xxxxx
XX0 0XX
Attn: |
Xxxxxx Xxxxxx Corporate Development Director |
Dear Sir or Madam:
In connection with your possible interest in a potential
business combination (the “Transaction”) involving
Xxxxx Respiratory Therapeutics, Inc. (the “Company”),
you have requested that we or our representatives furnish you or
your representatives with certain information relating to the
Company or the Transaction. All such information (whether oral
or contained on written or other tangible or electronic medium)
furnished (whether before or after the date hereof) by us or our
directors, officers, employees, affiliates, representatives
(including, without limitation, financial advisors, attorneys
and accountants) or agents (collectively, “our
Representatives”) to you or your directors, officers,
employees, affiliates, representatives (including, without
limitation, financial advisors, attorneys and accountants) or
agents or your potential sources of financing for the
Transaction (collectively, “your Representatives”) and
all analyses, compilations, forecasts, studies or other
documents prepared by you or your Representatives in connection
with your or their review of, or your interest in, the
Transaction which contain or reflect any such information is
hereinafter referred to as the “Information”. The term
Information will not, however, include information which
(i) is or becomes publicly available other than as a result
of a disclosure by you or your Representatives or (ii) is
or becomes available to you on a nonconfidential basis from a
source (other than us or our Representatives) which, to the best
of your knowledge after due inquiry, is not prohibited from
disclosing such information to you by a legal, contractual or
fiduciary obligation to us.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep the
Information confidential and will not (except as required by
legal process, and only after compliance with paragraph 3
below), without our prior written consent, disclose any
Information in any manner whatsoever, and (ii) will not use
any Information other than in connection with the Transaction;
provided, however, that you may reveal the
Information to your Representatives (a) who need to know
the Information for the purpose of evaluating the Transaction,
(b) who are informed by you of the confidential nature of
the Information and (c) 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.
2. You and your Representatives will not (except as
required by 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 or
has been made available, that you are considering the
Transaction or any other transaction involving the Company, or
that discussions or negotiations are taking or have taken place
concerning the Transaction or involving the Company or any term,
condition or other fact relating to the Transaction or such
discussions or negotiations, including, without limitation, the
status thereof.
3. 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 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 the Company does 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 you determine not to proceed with the Transaction,
you will promptly inform our Representative, Xxxxxx
Xxxxxxx & Co. Incorporated (“Xxxxxx
Xxxxxxx”), of that decision and, in that case, and at any
time
upon the request of the Company or any of our Representatives,
you will either (i) promptly destroy all Information on any
tangible or electronic medium in your or your
Representatives’ possession and confirm such destruction to
us in writing, or (ii) promptly deliver to the Company at
your own expense all tangible media containing Information in
your or your Representatives’ possession. Any oral
Information will continue to be subject to the terms of this
letter agreement.
5. You acknowledge that neither we, nor Xxxxxx Xxxxxxx or
its affiliates, nor our other Representatives, nor any of our or
their respective officers, directors, 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 you agree that no such
person will have any liability relating to the Information or
for any errors therein or omissions therefrom. You further agree
that you are not entitled to rely on the accuracy or
completeness of the Information and that you will be entitled to
rely solely on such representations and warranties as may be
included in any definitive agreement with respect to the
Transaction, subject to such limitations and restrictions as may
be contained therein.
6. You are aware, and you will advise your 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 other person is likely to purchase or sell
such securities in reliance upon such information.
7. You agree that, for a period of two years from the date
of this letter agreement, neither you nor any of your affiliates
will, without the prior written consent of the Company or its
Board of Directors: (i) acquire, offer to acquire, or agree
to acquire, directly or indirectly, by purchase or otherwise,
any voting securities or direct or indirect rights to acquire
any voting securities of the Company or any subsidiary thereof,
or of any successor to or person in control of the Company, or
any assets of the Company or any subsidiary or division thereof
or of any such successor or controlling person; (ii) make,
or in any way participate in, directly or indirectly, any
“solicitation” of “proxies” (as such terms
are used in the rules of the Securities Exchange Commission) to
vote, or seek to advise or influence any person or entity with
respect to the voting of, any voting securities of the Company;
(iii) make any public announcement with respect to, or
submit a proposal for, or offer of (with or without conditions)
any extraordinary transaction involving the Company or its
securities or assets; (iv) form, join or in any way
participate in a “group” (as defined in
Section 13 (d)(3) of the Securities Exchange Act of 1934,
as amended) in connection with any of the foregoing; or
(v) request the Company or any of our Representatives,
directly or indirectly, to amend or waive any provision of this
paragraph. You will promptly advise the Company of any inquiry
or proposal made to you with respect to any of the foregoing.
8. You agree that, for a period of two years from the date
of this letter agreement, you will not, directly or indirectly,
solicit for employment or hire any employee of the Company or
any of its subsidiaries with whom you have had contact or who
became known to you in connection with your consideration of the
Transaction; provided, however, that the foregoing provision
will not prevent you from employing any such person who contacts
you on his or her own initiative without any direct or indirect
solicitation by or encouragement from you.
9. You agree that all (i) communications regarding the
Transaction, (ii) requests for additional information,
facility tours or management meetings, and
(iii) discussions or questions regarding procedures with
respect to the Transaction, will be first submitted or directed
to Xxxxxx Xxxxxxx and not to the Company. You acknowledge and
agree that (a) we and our Representatives are free to
conduct the process leading up to a possible Transaction as we
and our Representatives, in our sole discretion, determine
(including, without limitation, by negotiating with any
prospective buyer and entering into a preliminary or definitive
agreement without prior notice to you or any other person),
(b) we reserve the right, in our sole discretion, to change
the procedures relating to our consideration of the Transaction
at any time without prior notice to you or any other person, to
reject any and all proposals made by you or any of your
Representatives with regard to the Transaction, and to terminate
discussions and negotiations with you at any time and for any
reason, and (c) unless and until a written definitive
agreement concerning the Transaction has been executed, neither
we
nor any of our Representatives will have any liability to you
with respect to the Transaction, whether by virtue of this
letter agreement, any other written or oral expression with
respect to the Transaction or otherwise.
10. You acknowledge that remedies at law may be inadequate
to protect us against any actual or threatened breach of this
letter agreement by you or by your Representatives, and, without
prejudice to any other rights and remedies otherwise available
to us, you agree to the granting of injunctive relief in our
favor without proof of actual damages. In the event of
litigation relating to this letter agreement, if a court of
competent jurisdiction determines in a final, nonappealable
order that this letter agreement has been breached by you or by
your Representatives, then you will reimburse the Company for
its costs and expenses (including, without limitation, legal
fees and expenses) incurred in connection with all such
litigation.
11. You agree that no failure or delay by us 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.
12. This letter agreement will be governed by and construed
in accordance with the laws of the State of New York applicable
to contracts between residents of that State and executed in and
to be performed in that State.
13. You hereby (a) submit to the jurisdiction of any
New York State and Federal courts sitting in New York City with
respect to all actions and proceedings arising out of or
relating to this letter agreement, (b) agree that all
claims with respect to any such action or proceeding may be
heard and determined in such New York State or Federal court,
(c) waive the defense of an inconvenient forum,
(d) agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
14. 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.
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,
XXXXX RESPIRATORY THERAPEUTICS, INC.
By: | /s/ Xxxxxx X. Xxxxxxxxx |
Name: | Xxxxxx X. Xxxxxxxxx |
Title: | EVP and General Counsel |
Accepted and Agreed as of the date first written above:
RECKITT
BENCKISER PLC
By: | /s/ Xxxxxx Xxxxxx |
Name: | Xxxxxx Xxxxxx |
Title: | Corporate Development Director | |
Date: | 15 October 2007 |