Exhibit 99.2(e)
June 4, 2001
Ivax Corporation
4400 Biscayne Boulevard
Miami, FL 33131
Dear Sirs or Madams:
You have requested information from Laboratorio Chile S.A. and its
subsidiaries (the "Company") in connection with a transaction involving the
purchase of shares of common stock of Laboratorio Chile S.A. (the
"Transaction"). As a condition to providing you access to the Evaluation
Material (as defined below), the Company is requiring that you agree, as set
forth below, to treat confidentially such Evaluation Material whether access to
such Evaluation Material information is provided orally or in writing.
"Evaluation Material" includes all information provided by or on behalf of the
Company, and all notes, analyses, compilations, studies or other documents,
whether prepared by you or others, which contains or otherwise reflects such
information. You agree to use the Evaluation Material solely for purposes of
evaluating the Transaction. You hereby acknowledge and confirm your
understanding that you will be given access to the Evaluation Material, subject
to the terms hereunder, at the premises of the Company in Santiago, Chile, and
Buenos Aires, Argentina and agree to use the Evaluation Material solely for the
purpose described above. We understand that upon review of the Evaluation
material you may request to have access to our premises in Peru, and will
consider your request in good faith.
The term "Evaluation Material" does not include information which you
can demonstrate (i) is or becomes generally available to the public other than
as a result of a disclosure by you or your Representatives, (ii) was available
to you on a non-confidential basis prior to its disclosure to you by the
Company, or its representatives or its agents, or (iii) becomes available to you
on a non-confidential basis from a source other than the Company, or its
shareholders, employees, representatives and agents, provided that such source
is not bound by a confidentiality agreement with the Company, or its
shareholders, representatives or its agents or otherwise prohibited from
transmitting the information to you or your Representatives by a contractual,
legal or fiduciary obligation.It is understood that you may disclose any of the
Evaluation Material to those of your Representatives who require such material
for the purpose of evaluating a possible Transaction (provided that such
Representatives shall be informed by you of the confidential nature of the
Evaluation Material). You agree that the Evaluation
Material will be kept confidential by you and your Representatives and, except
with the Company's specific prior written consent or as expressly otherwise
permitted by the terms hereof, will not be disclosed by you or your
Representatives. You further agree that you and your Representatives will not
use any of the Evaluation Material for any reason or purpose other than to
evaluate the Transaction. You agree to be responsible for any action or failure
to act that would constitute a breach of this Agreement by your Representatives.
It is also understood that only Representatives specifically identified
reasonably in advance by you to the Company in writing will be given access to
the Company premises, data rooms and Evaluation Material, as is further
specified below.
In the event that you or any of your Representatives are requested or
required (by law, regulation, oral questions, interrogatories, requests for
information or documents, subpoena, Civil Investigative Demand or in connection
with litigation or similar process) to disclose any of the Evaluation Material,
it is agreed that you or such Representative, as the case may be, will provide
the Company with prompt notice of such request(s) so that the Company may seek
an appropriate protective order or other appropriate remedy and/or waive your or
such Representative's compliance with the provisions of this Agreement. In the
event that such protective order or other remedy is not obtained, or that the
Company grants a waiver hereunder, you or such Representative may furnish that
portion (and only that portion) of the Evaluation Material which, in the opinion
of your counsel, you are legally compelled to disclose and will exercise your
best efforts to obtain reliable assurance that confidential treatment will be
accorded any Evaluation Material so furnished.
In addition, you hereby acknowledge that you are aware (and that your
Representatives who are apprised of this matter have been or will be advised)
that applicable securities laws restrict persons with material non-public
information about a company obtained directly or indirectly from that company or
its affiliates 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.
In the event that the transaction contemplated by the Agreement to
Tender dated as of May 18, 2001, a copy which is attached under Annex A hereto
(the "Agreement to Tender") is not consummated by July 20, 2001, without the
prior written consent of the Company you will not, and will not permit any of
your affiliates to, for the one-year period from the date of this Agreement, (a)
use the Evaluation Material to solicit or cause to be solicited the employment
of, or hire, any employee (excluding secretarial and other clerical staff) of
the Company in Argentina, provided that this agreement shall not prohibit any
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advertisement or general solicitation (or hiring as a result thereof) that is
not specifically targeted at such persons nor shall it prohibit the hiring of
any such person who (i) initiates employment with, but without prior contact
from, you or your affiliates, or (ii) is not to your knowledge after due inquiry
an officer, director or employee of the Company on the date you first solicit
such person, and (b) use the Evaluation Material to divert or attempt to divert
any business or customer of the Company.
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In the event that the transaction contemplated by the Agreement to
Tender is not consummated by July 20, 2001, you will promptly upon the Company's
written request deliver to the Company all Evaluation Material, together with
all copies thereof in the possession of you or your Representatives. In the
event of such request, all other documents or other matter constituting
Evaluation Material in the possession of you or your Representatives will be
destroyed, with any such destruction confirmed by you in writing to the Company.
It is understood and agreed that your access to Evaluation Material
shall be limited to a period of five consecutive business days which shall
commence on June 6, 2001 or such other date as may be agreed by you and us. The
information will be set forth in data rooms located in Chile and Argentina. You
agree that neither the Company nor its agents or representatives shall have any
liability to you or any of your Representatives resulting from the use of the
Evaluation Material by you or such Representatives. Moreover, none of the
Company or its agents, representatives or affiliates, or you or your
Representatives, will be under any legal obligation of any kind whatsoever with
respect to the transaction contemplated in the Agreement to Tender. The
agreements set forth in this Agreement may be modified or waived only by a
separate writing signed by the Company and you expressly so modifying or waiving
such agreements.
You hereby agree to indemnify and hold harmless the Company from any
damage, loss, cost or liability (including, without limitation, reasonable legal
fees and any cost incurred to enforce this indemnity) to the extent arising out
of or resulting from any unauthorized use or disclosure by you or your
Representatives of Evaluation Material. You acknowledge that money damages
would be both incalculable and an insufficient remedy for any breach of this
Agreement by you or your Representatives and that any such breach would cause
the Company irreparable harm. Accordingly, you also agree that in the event of
any breach or threatened breach of this Agreement, the Company, in addition to
any other remedies at law or in equity it may have, shall be entitled, without
the requirement of posting a bond or other security, to equitable relief,
including injunctive relief and specific performance.
It is understood and agreed that no failure or delay by the Company 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.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
letter agreement, which shall remain in full force and effect.
This agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
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You agree and consent to personal jurisdiction and service and venue
in any federal or state court within the State of New York having subject matter
jurisdiction, for the purposes of any action, suit or proceeding arising out of
or relating to this Agreement. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
If you are in agreement with the foregoing, please sign and return one
copy of this letter, which thereupon will constitute our Agreement with respect
to the subject matter hereof.
Very truly yours,
LABORATORIO CHILE S.A.
By: /s/ Pablo Lamarca
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Title: General Manager
Confirmed and agreed to as of
the date first above written:
IVAX CORPORATION
By: /s/ Neil Flanzraich
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Title: Vice Chairman and President
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