CONFIDENTIALITY AGREEMENT
Exhibit (e)(9)
August 18, 2009
NIPRO Medical Corporation
0000 XX 000xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
0000 XX 000xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Dear Xx. Xxxxxxxxxx:
In connection with a possible joint business relationship, commercial arrangement or other
consensual transaction approved by the respective Boards of NIPRO and the Company (the
“Transaction(s)”) among Home Diagnostics, Inc. (the “Company”) and NIPRO Medical Corporation and
NIPRO Corporation (collectively, “NIPRO,” and collectively, “Counter Party” and together with the
Company, individually a “Party”, and collectively, the “Parties”), each Party may disclose and/or
deliver to the other Party certain information about its business, assets, financial results,
operation and prospects (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 any of 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 Agreement as “Confidential Information”.
1. Confidential Information. The term “Confidential Information” shall mean all
information regarding the Disclosing Party which the Receiving Party receives and any other
information that the Disclosing Party or the Disclosing Party’s respective directors, stockholders,
officers, employees, agents, affiliates (as defined in Rule 12b-2 promulgated under the Securities
Exchange Act of 1934, as amended to date) or other Representatives, including, without limitation,
attorneys, accountants, consultants or financial advisors (collectively, “Representatives”) furnish
to the Receiving Party or its representatives, whether furnished before or after the date of this
Agreement, including but not limited to business plans, data, documents, internet website designs,
names and concepts, reports, financial statements, marketing data, sales data, analysis, tests,
specifications, charts, plans, drawings, models, ideas, schemes, correspondence, communications,
lists, manuals, computer programs, computer programmers, software, technology, techniques, methods,
processes, services, routines, systems, procedures, practices, operations, modes of operation,
apparatus, equipment, business opportunities, know-how, customer and supplier lists and trade or
other secrets, together with any and all notes, analyses, compilations, abstracts, studies,
summaries or other documents, reports or records prepared by the Receiving Party or its
Representatives which contain or otherwise reflect or, in whole or in part, are generated therefrom
(collectively, whether verbal, written or existing, stored or communicated in any other form or
medium, together with all copies thereof). The term “Confidential Information” shall not include
information, which the Receiving Party can demonstrate (a) is, or becomes, generally available to
the public other than as a result of a disclosure by the Receiving Party or its Representatives,
(b) is, or becomes, available to the Receiving Party from a source other than the Disclosing Party
or its Representatives, provided that such source is not, and was not, bound by a confidentiality
agreement with, or any other
contractual, fiduciary or other legal obligation of confidentiality to, the Disclosing Party
or any of its affiliates or Representatives, (c) was known or available to the Receiving Party on a
non-confidential basis prior to disclosure or (d) is developed independently by the Receiving Party
and is evidenced by documentation that was in the Receiving Party’s possession prior to disclosure.
Each Party acknowledges and agrees that the Confidential Information provided by the Disclosing
Party or its Representatives to the Receiving Party is a valuable asset to the Disclosing Party and
its stockholders, has competitive value and is of a confidential nature.
2. Non Disclosure. Without the Disclosing Party’s prior written consent, the
Receiving Party agrees that it shall not, and shall direct its Representatives not to, except as
otherwise provided in this Agreement, disclose to any person (including any of the Disclosing
Party’s directors, officers and employees whom the Disclosing Party has not given the Receiving
Party express written permission to include in these discussions), (a) the fact that these
discussions (or any other discussions between or involving the Parties) are taking or have taken
place, (b) other facts with respect to such discussions, including the status thereof, (c) the fact
that any Confidential Information has been made available to the Receiving Party or (d) any other
disclosure, whether written or oral, with respect to this Agreement or the matters contemplated
hereby, except and only to the extent that the Receiving Party has been advised by independent
legal counsel that such disclosure is required by law and then only after prior notice to, and
consultation with, the Disclosing Party. The term “person” as used in this Agreement shall be
broadly interpreted to include, without limitation, any corporation, company, limited liability
company, general or limited partnership, trust or other business entity or individual.
3. Confidentiality. Each Party agrees that it shall treat confidentially and not
disclose all or any portion of the Confidential Information provided by the Disclosing Party and
will use such Confidential Information solely for the purposes of evaluating the Transaction;
provided, however, that the Receiving Party may, subject to paragraph 5 below, disclose the
Confidential Information or portions thereof to its Representatives who need to know such
information for the purposes described above (it being understood that (a) the Receiving Party
shall maintain a list of Representatives to whom Confidential Information has been disclosed,
(b) each such representative shall be informed by the Receiving Party of the confidential nature of
the Confidential Information, shall receive a copy of this Agreement, (c) who shall be directed by
the Receiving Party to treat the Confidential Information confidentially and not to use it other
than for the purposes described above and (d) in any event, the Receiving Party shall be
responsible for any breach of this Agreement by any of its Representatives). Each Party agrees not
to initiate, contact or engage in discussions with any employees, customers or suppliers of either
Party with respect to the Transaction without the other Party’s prior written consent.
4. Nonsolicitation. Each Party agrees that for a period of two (2) years from the
date of this Agreement that neither it nor any of its respective affiliates will solicit for
employment or solicit the termination of any employee of the other Party who is either then
currently employed by the other Party or was employed by the other Party within the preceding six
(6) month period or solicit any customers, clients, or accounts of the other Party, without the
other Party’s prior written consent.
5. Disclosure Required by Law. If the Receiving Party or any of its Representatives
is requested or required by law or regulation (whether by deposition, interrogatory, request for
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documents, subpoena, civil investigative demand or similar process) to disclose any of the
Confidential Information, the Receiving Party will notify the Disclosing Party promptly so that the
Disclosing Party may seek any appropriate protective order and/or take any other action. In the
event that such protective order is not obtained, or that the Disclosing Party waives compliance
with the provisions thereof, (a) the Receiving Party or such representative, as the case may be,
may disclose to any tribunal or other person only that portion of the Confidential Information
which the Receiving Party is advised by independent legal counsel is legally required to be
disclosed and shall use its best efforts to obtain assurance that confidential treatment will be
accorded such Confidential Information and (b) the Receiving Party shall not be liable for such
disclosure unless such disclosure to such tribunal or other person was caused by, or resulted from,
a previous disclosure by the Receiving Party or any of its Representatives not permitted by this
Agreement.
6. Mutual Termination; Return of Confidential Information. Either Party may elect at
any time or for any reason to terminate the Receiving Party’s further access to the Confidential
Information, whereby the Receiving Party and its Representatives shall use commercially reasonable
efforts to return to the Disclosing Party all Confidential Information which is in tangible form,
without retaining any copies, and shall use commercially reasonable efforts to destroy all
abstracts and summaries thereof, and documents making reference thereto and deliver to the
Disclosing Party a certificate signed by the Receiving Party’s officer that supervised such
destruction. Notwithstanding the return or destruction of Confidential Information and unless
otherwise specified herein, the Parties and their Representatives will continue to be bound by
their obligations of confidentiality and other obligations hereunder until the second anniversary
of the date hereof.
7. No Representations. Neither Party nor any of its Representatives has made or makes
any representation or warranty as to the accuracy or completeness of the Confidential Information.
Each Party agrees that neither the Disclosing Party nor any of its Representatives shall have any
liability to the Receiving Party or to any of its Representatives resulting from the provision or
use of the Confidential Information.
8. Limitation on Information; Further Requests for Information. Each Party agrees
that the Disclosing Party may supervise the Receiving Party’s review of the Confidential
Information and may limit the Receiving Party’s (i) reproduction of the Confidential Information or
(ii) removal of the Confidential Information from the Disclosing Party’s premises and/or the
premises where the Confidential Information is being stored. It is also understood and agreed that
all (a) communications regarding a possible Transaction, (b) requests for additional information
and (c) requests for tours or meetings will be submitted or directed exclusively to Xxxxx Xxxxxx on
behalf of the Company or Xxxx Xxxxxxxxxx on behalf of Counter Party and that neither Party nor its
Representatives who are aware of the Confidential Information and/or the possibility of the
Transaction will initiate or cause to be initiated any communication with any stockholder,
director, officer or employee or any affiliates of the Disclosing Party or any customer, supplier,
insurer or lender of or to the Disclosing Party or any of its affiliates concerning the
Confidential Information or the Transaction.
9. Equitable Relief. It is understood and agreed that money damages would not be
sufficient remedy for any breach of this Agreement by the Receiving Party or its Representatives
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and that the Disclosing Party shall be entitled to seek specific performance, injunctive
relief and any other equitable relief as remedies for any such breach and the Receiving Party
further agrees to waive, and to use its best efforts to cause each of its Representatives to waive,
any requirement for the securing or posting of any bond in connection with such remedy. Such
remedies shall not be deemed to be the exclusive remedies for the breach of this Agreement by the
Receiving Party or its Representatives, but shall be in addition to all other remedies available at
law or in equity to the Disclosing Party. In the event of litigation relating to this Agreement,
the non-prevailing party shall promptly pay reasonable legal fees incurred in connection with such
litigation, including any appeal therefrom. Without qualifying any other obligations hereunder,
the Receiving Party shall promptly notify the Disclosing Party in writing as soon as practicable
after becoming aware of any breach by the Receiving Party or its Representatives of any obligation
the Receiving Party or its Representatives may have under the terms of this Agreement.
10. No Waiver. It is further understood that no failure or delay by a 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.
11. No Further Obligation. It is agreed that unless and until a definitive written
agreement has been executed and delivered, neither Party nor its affiliates and Representatives
shall be under any legal or other obligation of any kind except regarding matters specifically
agreed to in this Agreement and that any Party may cease negotiations with respect to the
Transaction at any time, provided that the cessation of such negotiations shall not affect its
obligations under this Agreement.
12. Governing Law. This Agreement shall be governed and construed in accordance with
the laws of the State of Florida applicable to agreements made and to be performed within such
State. Any judicial proceeding brought regarding any dispute arising out of this Agreement or any
matter related hereto shall be brought in the courts of the State of Florida or in the United
States District Court for the Southern District of Florida and, by execution and delivery of this
Agreement, each Party accepts the exclusive jurisdiction of such courts. Each Party hereby agrees
that service of any process, summons, notice or documents by U.S. registered mail addressed to such
Party shall be effective service of process for any action, suit or proceeding brought against it
in any such court. Each Party hereby irrevocably and unconditionally waives any objection to the
laying of venue of any such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding brought in any such court has been brought in an inconvenient
forum. Each Party agrees that a final judgment in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon such party and may be enforced in other courts
to whose jurisdiction such Party is or may be subject, by suit upon such judgment.
13. Standstill. The Parties agree that, for a period of eighteen (18) months from the
date of this Agreement, neither of the Parties nor any of their respective employees, officers,
directors and affiliates will, without the prior written consent of the other Party: (a) 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 other Party, or any
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subsidiary thereof, or of any successor to or person in control of the other Party, or any
assets of the other Party, or any subsidiary or division thereof, or of any such successor or
controlling person, other than passive investments of less than 5% of a Party (b) make, or in any
way participate in, directly or indirectly, any “solicitation” or “proxies” to vote (as such terms
are used in the rules promulgated by the Securities and Exchange Commission), or seek to advise or
influence any person or entity with respect to the voting of any securities of the other Party (c)
make any public announcement with respect to, or submit a proposal for, or offer of (with or
without conditions) any extraordinary transactions involving the other Party, or its securities or
assets (except as may otherwise be specifically permitted by this Agreement); and (d) 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.
14. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties and supersedes all prior agreements, written or oral, between the Parties relating to the
subject matter of this Agreement.
15. Severability. In the event that any provision of this Agreement is determined to
be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by applicable law. This Agreement supersedes all prior agreements, understandings
and/or arrangements, and any modification thereto must be in writing executed by the Parties.
If you are in agreement with the foregoing, please so indicate by signing, dating and
returning the enclosed copy of this Agreement, which may be executed in multiple counterparts by
facsimile or other electronic transmission, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute one and the same
original agreement with respect to the matters set forth herein.
Very truly yours, | ||||||
Home Diagnostics, Inc. | ||||||
By: | /s/ Xxxxx Xxxxxx | |||||
Name: | ||||||
Title: | Sr. VP, Sales and Marketing |
Agreed to and accepted this 18 day of August, 2009
NIPRO Medical Corporation | NIPRO Corporation | |||||||||
By:
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/s/ Xxxx Xxxxxxxxxx | By: | /s/ Xxxxx Xxxxxxxxx | |||||||
Name:
|
Name: | |||||||||
Title:
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President | Title: | ||||||||
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