Exhibit (d)(2)
CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (the "AGREEMENT") is
entered into as of May 5, 2000 by and between Cangene Corporation ("BUYER") and
CHESAPEAKE BIOLOGICAL LABORATORIES, INC. ("CBL"). (Buyer and CBL are sometimes
referred to herein individually as a "PARTY" and collectively as the "PARTIES;"
each Party as a provider/discloser of Confidential Information (as defined
below) is referred to herein as "PROVIDER;" and each Party as a
reviewer/recipient of Confidential Information is referred to herein as a
"REVIEWER").
RECITALS
WHEREAS, the Parties desire to review Confidential Information relating
to each other for the sole purpose of determining whether the Parties desire to
engage in a business combination or other strategic relationship (the
"TRANSACTION"); and
WHEREAS, as a condition to either Party providing any Confidential
Information to the other Party, the Parties have agreed to execute and deliver
this Agreement to protect each other prior to gaining access to any Confidential
Information.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, the Parties agree as follows:
1. Confidential Information
(a) Subject to 1(b) below, the term "CONFIDENTIAL INFORMATION"
means and includes all information and materials relating to either Party,
including, without limitation, all books, records, financial statements,
by-laws, operating agreements and/or other organizational documents, capital
structure information, ownership information, business plans, pricing
information, employee information, marketing plans and procedures, strategies,
forecasts, customer lists, supplier lists, product development plans, trade
secrets, documents, files, data, notes, analyses, compilations, studies,
specifications, technology, computer programs, designs, and other information,
materials and rights of every nature whatsoever whether prepared or created by
the Provider, the Reviewer or otherwise, together with such other information,
data or materials, if any, already provided to the Reviewer or its
Representatives (as defined below) by or on behalf of the Provider, directly or
indirectly, in each case whether oral or written, whether or not confidential or
proprietary status is indicated orally or in writing or in a context in which
the Provider or its representatives reasonable communicated, or the Reviewer or
its Representatives should reasonably have understood, that the information
should be treated as confidential, whether or not the specific words
"confidential" or "proprietary" are used, and all portions of all compilations,
studies, notes, analyses and memoranda prepared in connection therewith or
derived therefrom that contain or
reflect such information, and all copies thereof. The fact that Confidential
Information has been or will be exchanged pursuant to the terms of this
Agreement and that discussions are occuring with respect to the purposes hereof
(and the status of such discussions) also shall be treated as "CONFIDENTIAL
INFORMATION" under this Agreement.
(b) Notwithstanding anything contained in this Agreement to
the contrary, the following types of information and materials shall not
constitute "Confidential Information" for purposes of this Agreement and neither
Party shall have any obligations to the other Party hereunder with respect to
any information or materials if, when or to the extent that such information or
materials: (i) is or becomes generally available in the industry or to the
public other than as a result of a breach of this Agreement by the Reviewer or
its Representatives, (ii) was received by the Reviewer or its Representatives on
a non-confidential basis from a third party lawfully possessing and lawfully
entitled to disclose such information on a non-confidential basis, or (iii) is
required to be disclosed by law or by regulatory or judicial process, subject to
compliance with Secton 3(c).
2. Purpose. Each Party agrees that its review and inspection of
the Confidential Information shall be solely to determine whether the Parties
desire to proceed with the Transaction.
3. Non-Disclosure and Use of Confidential Information.
(a) The Reviewer agrees that all Confidential Information shall
be used by the Reviewer solely for the purpose stated in Section 2 and shall be
treated by the Reviewer and its Representatives as strictly confidential. The
Reviewer further agrees not to disclose, directly or indirectly, any of the
Confidential Information to any third party without the prior written consent of
the Provider, other than to the following (collectively, the "REPRESENTATIVES"):
(i) the Reviewer's directors, officer and employees (including those of its
affiliates), and (ii) the Reviewer's attorneys, accountants and financial
advisors; in each case only to those persons who have a need to know the
Confidential Information for the purpose stated in Section 2. The Reviewer shall
inform each of its Representatives prior to such Representative receiving any of
the Confidential Information of the requirements of this Agreement, and the
Reviewer shall be liable for any breach of this Agreement by its
Representatives.
(b) Neither party will (except as required by applicable law,
regulation or legal process, and only after compliance with paragraph 3(c)
below), without the prior written consent of the other Party, disclose to any
person the fact that the Confidential Information exists or has been made
available, that the Parties are considering the Transaction or any other
transaction involving the Parties, or that discussions or negotiations are
taking or have taken place concerning the Transaction or involving the Parties
or any term, condition or other fact relating to the Transaction or such
discussions or negotiations, including, without limitation, the status thereof.
(c) If the Reviewer or its Representatives are required under
the terms of a valid and effective subpoena or order issued by a court of
competent jurisdiction or by a governmental
body to disclose any Confidential Information, the Reviewer shall not do so
without first giving the Provider written notice of such request(s) so that the
Provider may seek an appropriate protective order or other confidential
treatment of the Confidential Information.
4. No Representation Concerning Confidential Information. The
Reviewer acknowledges and agrees that the Provider, in providing Confidential
Information hereunder, makes no representation or warranty as to the accuracy or
completeness of the Confidential Information and that the Provider shall have no
obligation or liability to the Reviewer or its Representatives resulting from
the use of contents of the Confidential Information or from any action taken or
any inaction occuring in reliance on the Confidential Information.
5. No Obligation to Disclose Confidential Information. Not
withstanding any provision of this Agreement, neither party shall have any
obligation to furnish or otherwise disclose Confidential Information to the
other Party.
6. Return/Destruction of Confidential Information. If either Party
hereto determines not to proceed with the Transaction, it will immediately
notify the other Party hereto in writing of that decision. Upon sending of such
written notice or earlier upon the request of the Provider, all copies of
Confidential Information provided to or in the possession of the Reviewer or its
Representatives shall be destroyed or returned promptly to the Provider,
together with (i) all copies thereof made by the Reviewer or its
Representatives, and (ii) all portions of all compilations, studies, notes,
analyses and memoranda prepared in connection with the examination thereof or
derived therefrom that contain or reflect any Confidential Information. Upon
request of the Provider, the Reviewer shall provide to the Provider a written
certificate as to the return or destruction of such Confidential Information.
Any oral Confidential Information will continue to be held subject to this
Agreement.
7. Standstill; Non-Solicitation of Employees.
(a) Buyer agrees that, for a period of one year from the date
of this Agreement, neither Buyer nor any subsidiary or affiliate of Buyer will,
without the prior written consent of CBL or its board of directors: (i) acquire,
directly or indirectly, by purchase or otherwise, any voting securities or
rights or options to acquire any voting securities, or securities or instruments
convertible into voting securities, of CBL; (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 and Exchange Commission) to vote, or seek to
advise or influence any person or entity with respect to the voting of, any
voting securities of CBL; (iii) make any public announcement in connection with
any of the foregoing; (iv) form, join or 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) otherwise attempt or join in an
attempt by another person or entity that intends to attempt to gain control of
CBL. In the event that Buyer becomes aware of any inadvertent acquisition of
securities of CBL covered by the foregoing, Buyer shall immediately so notify
CBL and as promptly as possible cause such securities to be divested in a
commercially reasonable manner.
(b) Buyer agrees that, for a period of two years from the date
of this Agreement, neither Buyer nor any subsidiary or affiliate of Buyer will
solicit for employment any executive officer or senior employee of CBL;
provided, however, (i) Buyer and Buyer's subsidiaries and affiliates shall not
be prohibited from employing any such individual who contacts Buyer of any of
Buyer's subsidiaries or affiliates on his or her own initiative, and (ii) the
foregoing restrictions shall not apply to general solicitations to hire through
the use of advertising. Upon Buyer's request, CBL shall provide Buyer with a
list of the names and titles of the individuals covered by this Section 7(b).
8. Amendment. No amendment, modification, or discharge of this
Agreement, and no waiver hereunder, shall be valid or binding unless set forth
in writing and duly executed by the Party against whom enforcement of the
amendment, modification, discharge or waiver is sought.
9. Breach of Agreement; Indemnity.
(a) In the event the Reviewer or any of its Representatives
fails in any respect to comply with its obligations under this Agreement, the
Reviewer shall be liable to the Provider for breach of this Agreement. The
Reviewer understands and agrees that monetary damages would not be a sufficient
remedy for any breach or contemplated breach of this Agreement, and that the
Provider shall be entitled to specific performance or other equitable relief by
way of restraining orders and injunctions as a remedy for any such breach or
contemplated breach without proof of actual damages and without the necessity of
posting any bond.
(b) The rights, powers, and remedies provided for in Section
9(a) shall be in addition to and shall not preclude the exercise of any other
right, power, or remedy available to the Provider at law or in equity. No
forbearance, failure, or delay in exercising any such right, power, or remedy
shall operate as a waiver thereof or preclude its further exercise.
(c) The Reviewer hereby indemnifies and holds harmless the
Provider from and against any and all claims, demands, losses, actions, debts,
liabilities, judgements, costs and attorneys' fees and disbursements arising out
of, claimed on account of, or in any matter predicted upon or contributed to by
a breach of this Agreement by the Reviewer or its Representatives or otherwise
incurred by the Provider in enforcing or preserving the Provider's rights under
this Agreement.
10. Term. Except as otherwise expressly provided herein, this
Agreement shall terminate two years after the date of the destruction or return
of the Confidential Information to the other Party.
11. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective successors and
assigns; provided, however, that neither Party shall assign any of its rights or
obligations under this Agreement without the prior written consent of the other
Party.
12. Severability. This Agreement shall be interpreted so as to give
full legal force and effect to all provisions hereof to the maximum extent
permitted by the law. If any term, provision, covenant, or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against public policy, such term, provision,
covenant or restriction shall be deemed to be reformed to the minimum extent
necessary to make such term, provision, covenant or restriction enforceable to
the maximum extent permitted by the law, and the remaining terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect to the maximum extent permitted by law and shall in now way be affected,
impaired or invalidated.
13. No Further Obligations or Agreements Hereunder. Neither party
shall be under any obligation to enter into any further agreements with the
other Party as a result of this Agreement. Each Party reserves the right, in its
sole discretion, to decline to make, to retract or to reject at any time any
proposal which has not yet become legally binding by execution of a written
agreement between the Parties with respect to any further agreements or business
arrangements with the other Party or its parents, subsidiaries or other
affiliates, and to terminate all further discussion and negotiations.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Transmission by facsimile
of an executed counterpart signature page hereof by a Party shall constitute due
execution and delivery of this Agreement by such Party.
15. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of Maryland applicable to contracts
between residents of that State and executed in and to be performed in that
State, without regard to principles of conflicts of laws.
16. Entire Agreement. This Agreement represents the entire
agreement between the Parties and relating to the subject matter hereof and to
the treatment of Confidential Information heretofore or hereafter reviewed or
inspected by either Party or its Representatives.
17. Jurisdiction; Forum. Each Party hereto hereby (a) submits to
the jurisdiction of any Maryland court or Federal court sitting in Baltimore
City, Maryland with respect to all actions and proceedings arising out of or
relating to this Agreement, (b) agrees that all claims with respect to any such
action or proceeding may be heard and determined in such Maryland court or
Federal court, (c) waives the defense of inconvenient forum, and (d) agrees that
a final judgement in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgement or in any other
manner provided by the law.
IN WITNESS WHEREOF, duly authorized representatives of the parties have
executed this Agreement as of the date first set above.
BUYER:
By: /s/ Alex Glasenberg
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Title: V.P. Finance and Chief Financial Officer
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CBL:
ARNHOLD AND S. BLEICHROEDER, INC.
On behalf of
CHESAPEAKE BIOLOGICAL LABORATORIES, INC.
By: /s/ Gregory A. Horwitz
---------------------------------
Gregory A. Horwitz
Title: Associate