April 28, 2010 PERSONAL AND CONFIDENTIAL Tyco Healthcare Group LP d/b/a Covidien
Exhibit (d)(4)
April 28, 2010
PERSONAL AND CONFIDENTIAL
Tyco Healthcare Group LP d/b/a Covidien
00 Xxxxxxxxx Xxxxxx
Mansfield MA 02048
Ladies and Gentlemen:
In connection with your consideration of a possible transaction (the “Possible Transaction”) with respect to ev3 Inc., a Delaware corporation (the “Company”), the Company is prepared to make available to you certain financial and other information about the Company. As a condition to such information being furnished to you, you hereby agree to keep confidential in accordance with the provisions of this confidentiality agreement (this “Agreement”) any information concerning the Company (whether prepared by the Company, its advisors or otherwise) that is furnished to you or your directors, officers, employees, affiliates, representatives (including without limitation, attorneys, accountants, consultants, bankers, debt financing sources and financial and other advisors) or agents (collectively, “Representatives”) by or on behalf of the Company or the Company’s representatives (including any information furnished to you or your Representatives pursuant to the letter agreement, dated April 6, 2010 between the parties (the “Prior Confidentiality Agreement”), irrespective of the form of communication and in whatever form maintained, whether documentary, computerized or otherwise), together with all notes, analyses, compilations, forecasts, studies or other documents or records prepared by or on behalf of you or your Representatives, which contain, reflect or are based upon, in whole or in part, the information so supplied (collectively, the “Evaluation Material”), and you agree to the other matters contained in this Agreement.
The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this Agreement, (ii) is or becomes available to you on a non-confidential basis from a source other than the Company or the Company’s representatives, provided that such source is not then known to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) had been disclosed to you or one or more of your Representatives on a non-confidential basis prior to its disclosure to you by the Company, as shown by written records in your files, or (iv) is independently acquired or developed by you without violating any obligations under this Agreement.
You hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Possible Transaction and will be kept strictly confidential by you. You agree that you will not, without the prior written consent of the Company, disclose the Evaluation Material to anyone (including any investment banks) except to your Representatives who are actually engaged in, and need to know such Evaluation Material to perform, the evaluation referred to above, each of whom must be bound by legal, contractual or fiduciary obligations to treat the Evaluation Material confidentially. Without limiting the generality of the foregoing, in the event that the Possible Transaction is not consummated neither you nor your Representatives shall use any of the Evaluation Material for any purpose.
You will be responsible for any breach of this Agreement by your Representatives (including your employees who, subsequent to the first date of disclosure of Evaluation Material hereunder, become former employees), and you shall take reasonable measures to restrain your Representatives (and former employees) from prohibited or unauthorized disclosure or use of the Evaluation Material.
The public disclosure of your potential interest in the Possible Transaction could have a material adverse effect on the Company’s business. Accordingly, you agree that, without the prior written consent of the Company, you will not disclose, and will direct your Representatives not to disclose, to any person other than your Representatives the fact that the Evaluation Material exists or has been provided to you, that you are considering
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the Possible Transaction or any other possible transaction involving the Company or that discussions or negotiations are taking place concerning a possible transaction involving the Company, or any of the terms, conditions or other facts with respect to any such possible transaction, including, without limitation, the status thereof, unless (i) in the opinion of your counsel such disclosure is required by you in order that you comply with any law, order, decree or governmental or stock exchange request and prior to such disclosure, and as far in advance as is reasonably practicable, you consult with the Company and its legal counsel concerning the information you propose to disclose or (ii) such information is made publicly available other than as a result of wrongful disclosure by you or your Representatives. The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the news media and any corporation, governmental agency, partnership, stock exchange, association, group, individual or other entity.
In the event that you or any of your Representatives become legally compelled to disclose any Evaluation Material, you will give the Company prompt notice of such request, if practicable, so that the Company may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. If, in the absence of a protective order, you or any of your Representatives become legally compelled to disclose Evaluation Material, you or such Representative may disclose only such portion of the Evaluation Material which counsel advises that you or such Representative is compelled to disclose, without liability under this Agreement; provided, however, that you use reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.
In consideration of the Evaluation Materials being furnished to you, you hereby agree that, for a period of one year from the date of this Agreement, neither you nor your Representatives will, directly or indirectly, solicit for employment any person (a) with whom you or any of your Representatives has had direct contact in connection with a Possible Transaction or (b) who is an officer of the Company and is identified as such in the Company’s filing made pursuant to the Securities Exchange Act of 1934. The foregoing provision shall not preclude you from, and you shall not be required to obtain the Company’s consent prior to, offering to employ or employing any such person who (i) responds to any advertisement or other general solicitation for employment (including through the use of employment agencies or advertisements in the media) that is not specifically directed to employees of the Company, (ii) contacts you on his or her own initiative without any direct or indirect solicitation by you, (iii) began employment discussions with you prior to the date of this Agreement or (iv) has been terminated by the Company prior to commencement of employment discussions between you and such person.
During the course of your evaluation, all inquiries and other communications are to be made directly to JPMorgan, the Company’s financial advisor. Accordingly, you agree, and will direct your Representatives, not to directly or indirectly contact or communicate with any executive or other employee of the Company, concerning the Possible Transaction or any Evaluation Materials, or to seek any information in connection therewith from such person, without the express consent of the Company.
Although the Company will endeavor to include in the Evaluation Material information that it believes to be relevant for the purpose of your investigation, you understand that neither the Company nor its representatives have made or make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material.
You agree that neither the Company nor its representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. You further acknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you with regard to the Possible Transaction, and to terminate discussions and negotiations with you at any time and for any or no reason. You further acknowledge and agree that unless and until a final definitive agreement regarding a transaction between the Company you has been executed and
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delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically agreed to herein.
If you determine not to proceed with the Possible Transaction, you will promptly inform the Company of that decision. Immediately after any decision by you not to proceed with the Possible Transaction, or at any time upon the request of the Company, you will promptly redeliver to the Company (or, at your election, destroy) originals and all copies of the Evaluation Material in your or your Representatives’ possession, will destroy any other written materials, including memoranda, notes and other writings or data (whatever the form or data storage medium), containing or reflecting any information in the Evaluation Materials (whether prepared by the Company, its representatives or otherwise) and will not retain any copies, extracts or other reproductions (whatever the form or data storage medium) in whole or in part of such materials. With regard to destruction of Evaluation Material in electronic form, you shall only be required to perform customary “delete” functions made available by the software vendor for use by the end-user of the relevant software, but you shall not be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic computer recovery techniques. Compliance with this paragraph must be certified in writing to the Company by an authorized officer supervising the return or destruction of written materials pursuant hereto. Notwithstanding the return or destruction of Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.
Without the prior written consent of the Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives will, nor will you or any of your affiliates or Representatives encourage or assist others to, for a period of 18 months from the date of this letter agreement (i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar transaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any way participate, directly or indirectly, in any “solicitation” of any “proxy” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company, (iv) form, join or in any way participate, directly or indirectly, in a “group” within the meaning of Section 13(d)(3) of the 1934 Act, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management, board of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this paragraph. Notwithstanding the foregoing, the foregoing provisions shall not be applicable to a party (x) in the event that the Board of Directors of the Company approves a transaction with any person or entity that would result in such person or entity beneficially owning more than 50% of the outstanding voting securities of the Company (or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company’s assets, and the definitive agreement in connection with such transaction has not been terminated or expired, or (y) for a 60-day period after any person, entity or “group” (as defined in the 1934 Act), other than you or any of your affiliates, commences or publicly announces its intention to commence a tender offer for more than 50% of the outstanding voting securities of the Company.
You agree that money damages may not be a sufficient remedy for any breach of this Agreement by you or your Representatives, and that in addition to all other remedies the Company shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach without proof of actual damages. All obligations under this Agreement shall terminate upon the earlier of (i) the closing of the Possible Transaction or (ii) the third anniversary of the date of this Agreement.
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This Agreement contains the entire agreement between you and us concerning the subject matter hereof. Without limiting the generality of the foregoing, this Agreement supersedes and amends in its entirety the Prior Confidentiality Agreement. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and signed by you and us. Any such waiver by either party shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair such party’s rights in any other respect or at any other time. Each party also agrees that no failure or delay by the other party in exercising any right, power or privilege under this Agreement 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 under this Agreement. Without impairing any other provision hereof, you agree to promptly advise the Company of any prohibited disclosure or other breach of this Agreement.
This Agreement is for the benefit of the Company, its directors, officers, stockholders, affiliates, advisors and agents. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without giving effect to its conflict of laws principles or rules. In the event of any litigation arising hereunder, you agree to submit to the exclusive jurisdiction of courts of the State of Minnesota and of the United States located in Hennepin County, Minnesota.
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,
| ev3 Inc. | ||
| By: | /s/ Xxxxx XxXxxxxxx | |
| Name: | Xxxxx XxXxxxxxx | |
| Title: | Senior Vice President and Chief Financial Officer | |
Xxxxxxxxx and agreed to as of the date of this letter:
| Tyco Healthcare Group LP d/b/a Covidien | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | |
| Title: | Vice President | |
