Exhibit 99 (d)(ii)
May 4, 2000
VIA E-MAIL, FACSIMILE AND UPS OVERNIGHT
William Mayer
Park Avenue Equity Partners, L.P.
600 Park Ave., Suite 510
New York, NY 10022
Re: CONFIDENTIALITY / STANDSTILL AGREEMENT
Dear Mr. Mayer:
We understand that you may be interested in exploring the feasibility of a
transaction with Sunrise Medical Inc. (the "Company") on a mutually agreeable
basis. In connection with your possible interest in a transaction with the
Company, we propose to furnish you with certain information related to the
Company (herein referred to as the "Confidential Information"). Confidential
information includes not only written information but also information
transferred orally, visually, electronically or by any other means. The fact
that such information has been delivered to you, that such a transaction is
under consideration by the Company, that discussions or negotiations have
occurred or are occurring regarding a possible transaction involving the Company
and you, and the status of any such discussions or negotiations, are considered
Confidential Information for purposes of this Agreement. In consideration of our
furnishing you with the Confidential Information, and as a condition to such
disclosure, you agree as follows:
1. The Confidential Information will be used by you solely for the
purpose of your evaluation of the desirability of your entering
into a transaction with the Company, and for no other purpose.
2. You shall keep all Confidential Information secret and
confidential and shall not, except as may be required by
applicable law without the prior written consent of the Company,
disclose it to anyone except to a limited group of your own
employees, directors, officers, agents, financing sources, and
outside advisors ("Representatives") who are actually engaged in,
and need to know such Confidential Information to perform, the
evaluation referred to above, each of whom must be advised of the
confidential nature of the Confidential Information and of the
terms of this Agreement and must agree to abide by such terms. You
shall be responsible for any breach of the Agreement by any of
your Representatives.
3. Upon any termination of your evaluation of pursuing a transaction
with the Company or upon notice from the Company to you (i) you
will return to the Company the Confidential Information which is
in tangible form, including any copies which you may have made,
and you will destroy all abstracts, analyses, and/or summaries
thereof or references thereto in your documents and certify to us
in writing that you have done so, and (ii) neither you nor your
Representatives will use any of the Confidential Information with
respect to, or in furtherance of, your business, any of their
respective businesses, or in the business of anyone else, whether
or not in competition with the Company, or for any other purpose
whatsoever.
4. Confidential information includes all analyses, compilations,
forecasts, studies or other documents prepared by you or your
Representatives in connection with your evaluation of pursuing a
transaction with the Company. Confidential Information does not
include any information which was publicly available prior to your
receipt of such information or thereafter became publicly
available (other than as a result of disclosure by you or any of
your Representatives). Information shall be deemed "publicly
available" if it becomes a matter of public knowledge or is
contained in materials available to the public or is obtained from
any source other than the Company (or its directors, officers,
employees, agents or outside advisors, provided that such source
is not to your knowledge prohibited from disclosing such
information by a legal, contractual or fiduciary obligation to the
Company and did not obtain the information from an entity or
person prohibited from disclosing such information by a legal,
contractual or fiduciary obligation to the Company.
5. You understand that we have endeavored to include in the
Confidential Information those materials which we believe to be
reliable and relevant for the purpose of your evaluation, but you
acknowledge that neither the Company nor any of its respective
directors, officers, employees, agents or outside advisors make
any representation or warranty as to the accuracy or completeness
of the Confidential Information and you agree that such persons
shall have no liability to you or any of your Representatives
resulting from any use of the Confidential Information. You
understand that the Confidential Information is not being
furnished for use in an offer or sale of securities of the Company
and is not designed to satisfy the requirements of federal or
state securities laws in connection with any offer or sale of such
securities to you.
6. In the event that you or any of your Representatives is requested
in any proceeding to disclose any of the Confidential Information
you will provide the Company with prompt prior written notice so
that the Company may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this
Agreement. In the event that the Company is unable to obtain such
protective order or other appropriate remedy, you will furnish
only that portion of the Confidential Information which you are
advised by written opinion of counsel is legally required (a copy
of which opinion will be provided to the Company prior to such
disclosure), you will give the Company written notice of the
information to be disclosed as far in advance as practicable, and
you will exercise your best commercially reasonable efforts to
obtain a protective order or other reliable assurance that
confidential treatment wil be accorded the Confidential
Information so disclosed.
7. Without the prior written consent of the Company, you will not,
and will not encourage or assist others to, for a period of 2
years (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 Securities Exchange Act of
1934, as amended, with respect to any voting securities of the
Company, (v) enter into any discussions,
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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,
stock, or policies of the Company, (viii) request the Company,
directly or indirectly, to amend or waive any provisions of this
paragraph.
8. You acknowledge that you are (i) aware of any will comply with the
United States securities laws which prohibit any person who has
material nonpublic information about a company from purchasing or
selling securities of such company, or from communicating such
information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or
sell such securities and (b) familiar with the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder,
and agree that you will neither use, nor cause any third party to
use, any Confidential Information in contravention of such 1934
Act, including Rules 10b-5 and 14e-3.
9. You agree that for a period of 2 years, 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 evaluation of a
possible transaction involving the Company; PROVIDED 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 (not
including a general solicitation of employment not specifically
directed towards employees of the Company) from, you.
10. Without impairing any other provision hereof, you will promptly
advise the Company of any prohibited disclosure or other breach of
this Agreement of which you have actual knowledge.
11. You understand and agree that money damages would not be a
sufficient remedy for any breach of this Agreement by you or your
Representatives, and that the Company, its agents and
representatives shall be entitled to specific performance and/or
injunctive relief as a remedy for any such breach. Such remedy
shall not be deemed to be the exclusive remedy for any such breach
of this Agreement but shall be in addition to all other remedies
available at law or in equity. You further agree that no failure
or delay by the Company, its directors, officers, employees,
agents or outside advisors or representatives in exercising any
right, power or privilege under this Agreement 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 under this Agreement.
12. Nothing in this Agreement shall impose any obligation upon you or
us to consummate a transaction or to enter into any discussion
or negotiations with respect thereto. You acknowledge
that Sunrise reserves the right, in its sole and absolute
discretion, to reject any or all proposals and to terminate
discussions and negotiations with, or directly or indirectly
involving you, at any time. Should we enter into a binding
agreement, we will discuss and agree upon a public disclosure
strategy provided that Sunrise retains the right to unilaterally
fulfill its SEC reporting obligations.
13. Miscellaneous Provisions. This Agreement contains the entire
current understanding between the parties related to the
transactions hereby. This Agreement shall be construed in
accordance with the laws of the State of California without regard
to the rules regarding conflict of laws. In the event of any
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dispute under this Agreement, the parties shall make an authorized
representative available, exchange information as appropriate, and
negotiate diligently and in good faith to resolve the dispute.
Both parties submit to the exclusive jurisdiction of state and
federal courts in San Diego County, California. Both parties waive
any right to trial before a jury. Each party shall be responsible
for its own attorneys' fees and expenses incurred on account of
resolving any dispute, without regard to any prevailing party's
rights under applicable law. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their
respective heirs, executors, administrators, successors and
assigns; except that neither party may transfer any rights or
obligations under this Agreement without the other party's prior
written consent. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is in
writing and signed by the party against whom the enforcement of
such modification, waiver, amendment, discharge or change is or
may be sought. This Agreement and the wording contained herein
have been arrived at by mutual negotiations of the parties, and no
provision hereof shall be interpreted or construed against one
party in favor of another party merely by reason of draftsmanship.
Each party is entitled to be represented by independent legal
counsel with respect to entering into this Agreement, and hereby
acknowledges that it has retained independent legal counsel to
advise it of its rights and obligations hereunder, or has
voluntarily waived its right to do so. Any notice given in
connection with this Agreement shall be in writing and shall be
delivered in person by messenger, by certified U.S. mail (with
return receipt requested), or by Federal Express, to the other
party at the party's address stated herein (as amended by written
notice from time to time). This Agreement shall terminate 2 years
from the date of delivery of the last Confidential Information by
the Company to you.
If you are in agreement with the foregoing, please sign and return the
enclosed copy of this letter which will constitute our agreement with respect to
the subject matter of this letter as of the date first above written.
Very truly yours,
Sunrise Medical Inc.
/s/ Steven A. Jaye
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Steven A. Jaye
Senior Vice President, CEO
Agreed and Accepted to:
PARK AVENUE EQUITY PARTNERS, L.P. VESTAR CAPITAL PARTNERS IV, L.P.
By: Vestar Associates IV, L.P.
Its: General Partner
By: /s/ Anthony R. Bienstock By: Vestar Associates, Corporation, IV
----------------------------- Its: General Partner
By: /s/ Steve M. Silver
Its: Partner Its: Vice President
-----------------------------
Date: 5/9/00
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