Exhibit 99(d)(2)
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
September 25, 2001
x-XxxXxxx.xxx (d/b/a Med Diversified)
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxxx
RE: CONFIDENTIALITY AGREEMENT
In connection with certain proposed discussions of a possible business
transaction between x-XxxXxxx.xxx (d/b/a Med Diversified ("Med Diversified") and
Tender Loving Care Health Care Services, Inc. ("Tender Loving Care"), each of
Med Diversified and Tender Loving Care may disclose to the other certain
confidential and proprietary information relating to its business, affairs,
finances, and technology. Each of Med Diversified and Tender Loving Care is
willing to disclose such Confidential Information to the other, but only on the
terms set forth in this letter agreement.
We agree as follows:
1. As used in this letter agreement, the term "Confidential
Information" of a party means all information provided by or on behalf of that
party to the other party or its representatives, except information that:
(a) was known to the receiving party prior to such disclosure by
the disclosing party;
(b) was public knowledge at the time of such disclosure to the
receiving party, or becomes public knowledge after such
disclosure, through no action or omission by or on behalf of
the receiving party; or
(c) is lawfully disclosed or made available to the receiving party
by a third party having no obligation to the disclosing party
to maintain the confidentiality of such information.
2. Each of Med Diversified and Tender Loving Care will maintain the
confidentiality of all Confidential Information of the other and hold it in
trust for the exclusive benefit of the other. All Confidential Information will
remain the exclusive property of the disclosing party, and will be used by the
receiving party exclusively for purposes of the discussions referred to above.
Unless previously authorized in writing by the disclosing party, the receiving
party will not use Confidential Information for any other purpose or for the
benefit of itself or others, and
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will not disclose it to anyone (except its employees and authorized
representatives, on a "need-to-know" basis). Each party will be jointly and
severally responsible for any violation of the terms of this letter agreement by
any of its employees or authorized representatives to whom it discloses any
Confidential Information of the other party.
3. Each of Med Diversified and Tender Loving Care will promptly deliver
to the other, upon request, all documents and other tangible media that contain
or reflect Confidential Information of the other (including all copies,
reproductions, digests, abstracts, analyses, and notes) in its possession or
control, and will destroy any related computer files.
4. Neither party makes any representations or warranties, nor shall
either party incur any liability, in respect of any information (including
Confidential Information) provided by or on behalf of it to the other party,
including without limitation with respect to the accuracy or completeness of
such information.
5. If either party is required by law to disclose any Confidential
Information of the other, such party will provide the other party with prompt
notice of such requirement so that the other party may seek a protective order
or take other appropriate action and/or waive compliance with this letter
agreement to the extent of such required disclosure. In the absence of such a
waiver, if either party is, in the opinion of its counsel, compelled to disclose
Confidential Information of the other party upon pain of liability for contempt
or other censure or penalty, such party may disclose such Confidential
Information to the relevant court or other tribunal without liability hereunder,
but such information shall remain confidential under this letter agreement after
such disclosure.
6. Each of Med Diversified and Tender Loving Care agrees that, for a
period of two years from the date hereof, it will not, directly or indirectly
through an affiliate (as defined in Rule 405 under the Securities Act of 1933,
as amended), solicit the employment (other than through general solicitations in
the media) of any individual employed by the other who is known by the
soliciting party to have participated in the discussions or negotiations
concerning a possible transaction between the parties or in any due diligence
investigation by a party of the other.
7. Each of Med Diversified and Tender Loving Care acknowledges that any
breach by it of its obligations under this letter agreement would inevitably
cause substantial and irreparable damage to the other party, and that money
damages would be an inadequate remedy therefor. Accordingly, each of Med
Diversified and Tender Loving Care acknowledges and agrees that the other party
will be entitled, in addition to any other available remedies, to an injunction,
specific performance, and/or other equitable relief to prevent the violation of
such obligations.
8. Either party may at any time terminate the discussions with the
other that are the subject of this letter agreement, for any reason or for no
reason, and the provisions of this letter agreement will survive any such
termination.
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9. Until the earlier of such time as (i) a definitive acquisition
agreement is executed by the parties hereto or (ii) the passage of thirty (30)
days from the date of this letter agreement, Tender Loving Care agrees not to
enter into any discussions or negotiations with any third parties regarding the
sale of Tender Loving Care (whether effected through a merger, sale of stock or
sale of all or substantially all of the assets or otherwise). The parties hereby
acknowledge that any definitive acquisition agreement will contain provisions
restricting discussions and negotiations with third parties regarding the sale
of Tender Loving Care (whether effected through a merger, sale of stock or sale
of all or substantially all of the assets or otherwise). Notwithstanding the
foregoing, Tender Loving Care may, subject to the fiduciary duties of its Board
of Directors, consider, discuss, respond, furnish information, negotiate, enter
into an agreement with respect to any unsolicited offers.
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Please sign below to indicate Med Diversified's agreement to the
foregoing. This letter agreement will then constitute an agreement governed by
the internal laws of the State of New York (without reference to principles of
conflicts or choice of law).
Very truly yours,
TENDER LOVING CARE
HEALTH CARE SERVICES, INC.
By: /s/XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
Chairman and Chief Executive
Officer
AGREED:
X-XXXXXXX.XXX
(d/b/a Med Diversified)
By: /s/XXXXX XXXXXXXXXXXX
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Xxxxx Xxxxxxxxxxxx
Vice Chairman, Co-CEO and
President
