Exhibit (d)(4)
BUREAU VERITAS S.A.
92077 Paris La Defense Cedex
France
July 10, 2002
PERSONAL AND CONFIDENTIAL
U.S. Laboratories Inc.
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▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
Re: Confidentiality Agreement
Gentlemen:
We have expressed an interest in considering a possible acquisition (the
"Acquisition") of U.S. Laboratories Inc. In connection with our consideration of
the Acquisition, we are furnishing you or your directors, officers, employees,
advisors, agents, lenders and others associated with you (collectively,
"Representatives") with certain information relating to Bureau Veritas S.A. (the
"Company") which is either non-public, confidential or proprietary in nature.
This information, whether oral or written, together with analyses, compilations,
excerpts, forecasts, summaries, studies or other documents and writings prepared
by you or your Representatives which contain or otherwise reflect such
information or your review of the Company, is hereinafter referred to as the
"Confidential Information."
The term "Confidential Information" shall not include those portions of the
Confidential Information that you can demonstrate (i) are or become generally
available to the public other than as a result of a disclosure by you or your
Representatives, (ii) become available to you on a non-confidential basis from a
source (other than the Company) which is not to your knowledge prohibited from
disclosing such Confidential Information to you by a legal, contractual or
fiduciary obligation to the Company, or (iii) were in your possession prior to
being furnished to you or your Representatives by the Company.
In consideration of the Confidential Information being provided to you, you
agree as follows:
U.S. Laboratories Inc.
July 10, 2002
Page 2
1. Maintenance of Confidentiality; Representatives' Obligations. For a period
of two (2) years from the date of this Agreement, the Confidential
Information will be kept confidential and will not, without the Company's
prior written consent, be disclosed by you or by your Representatives in
any manner whatsoever, in whole or in part, and shall not be used by you or
your Representatives except for the sole purpose of developing, proposing,
negotiating and consummating an Acquisition pursuant to this Agreement.
Moreover, you agree to reveal the Confidential Information only to your
representatives who need to know the Confidential Information for the
purpose of evaluating such an Acquisition, who are informed by you in
writing of the confidential nature of the Confidential Information and who
agree to act in accordance with the terms and conditions of this Agreement.
2. Non-Disclosure of Potential Acquisition. For a period of two (2) years
after the date of this Agreement, without the Company's prior written
consent, you and your Representatives will not, except as required by law,
including, without limitation, United States securities laws, (i) disclose
to any person the fact that the Confidential Information has been made
available, that discussions or negotiations are taking place or have taken
place concerning a possible Acquisition involving you and the Company, or
any of the terms, conditions or other facts with respect to a possible
Acquisition, including, but not limited to, the status thereof. The term
"person" as used in this Agreement shall be broadly interpreted and shall
include, without limitation, any individual or any corporation, company,
group, partnership other entity.
3. Return of Confidential Information. You and your Representatives will
return to the Company immediately upon its request all copies of the
Confidential Information, including, without limitation, that portion of
the Confidential Information consisting of analyses, compilations,
excerpts, forecasts, summaries, studies or other documents and writings
prepared by you or your Representatives. At your election, the Confidential
Information that is required to be returned to the Company may be destroyed
and such destruction shall be certified in writing to the Company by an
authorized representative of the party in possession. The return and/or
destruction of such Confidential Information as provided above shall not
relieve you and your Representatives from your other obligations under this
Agreement.
4. Representations or Warranties. You acknowledge that the Company makes no
express or implied representation or warranty as to the accuracy or
completeness of the Confidential Information, and that the Company shall
not have any liability resulting from the use of the Confidential
Information, errors therein or omissions therefrom. You agree for yourself
and on behalf of your Representatives that you and your Representatives
shall be entitled to rely solely on the representations and warranties, if
any, made to you by the Company in any agreement regarding an Acquisition.
5. Notification to Company of Mandatory Disclosure. If you or any of your
Representatives are requested or required by oral questions (that a court
or regulatory body orders to be answered), interrogatories, requests for
information or documents, subpoena, civil
U.S. Laboratories Inc.
July 10, 2002
Page 3
investigative demand or similar process, to disclose any part of the
Confidential Information, you or your Representatives, as the case may be,
will (i) promptly notify the Company of each such request or requirement
and the documents requested thereby, so that the Company may seek an
appropriate protective order or other remedy and/or waive compliance by you
or your Representatives, as the case may be, with the provisions of this
Agreement, and (ii) consult with the Company on the advisability of taking
legally available steps to resist or narrow such request or requirement. If
in the absence of such a protective order or receipt of such a waiver, you
or your Representative is nonetheless in the opinion of your outside
counsel required to disclose, by applicable law, any part of the
Confidential Information, you may disclose such part of the Confidential
Information as may be required to be disclosed without liability under this
Agreement, except that in that event, if the circumstances so permit, you
shall give the Company written notice of the Confidential Information to be
so disclosed as far in advance of its disclosure as is lawful and
practicable, and you shall cooperate with the Company in its efforts to
obtain an order or other reasonable assurances that confidential treatment
will be accorded to the portion of the Confidential Information so required
to be disclosed.
6. Acquisition Subject to Definitive Agreement. No contract or agreement
providing for an Acquisition shall be deemed to exist between you and the
Company unless and until a definitive agreement has been executed and
delivered, and you hereby waive for yourself and on behalf of your
Representatives, in advance, any claims (including without limitation,
breach of contract) in connection with any such Acquisition until you shall
have entered into a definitive agreement. Unless and until a definitive
agreement between you and the Company with respect to such an Acquisition
has been executed and delivered, the Company shall not have any legal
obligation of any kind whatsoever to you or your Representatives with
respect to any such Acquisition by virtue of this Agreement or any other
written or oral expression with respect to such Acquisition except, in the
case of this Agreement, for the matters specifically agreed to in this
Agreement. For purposes of this paragraph and of Paragraph 4, the term
"definitive agreement" does not include an executed letter of intent or any
other preliminary written agreement, nor does it include any written or
oral offer or proposal on the Company's part.
7. Company's Right to Terminate Access. The Company may terminate access for
you or your Representatives to the Confidential Information at any time.
8. Waiver. No failure or delay by the Company or by you or your
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 of any right, power
or privilege hereunder.
9. Specific Performance. If any of the provisions of this Agreement are not
performed by you or your Representatives in accordance with their
respective terms or were otherwise breached, money damages would not be a
sufficient remedy for any breach of this Agreement and the business and
assets of the Company would be irreparably harmed. Accordingly, the Company
shall be entitled to specific performance and injunctive or
U.S. Laboratories Inc.
July 10, 2002
Page 4
other equitable relief as a remedy for any such breach. Further, for
yourself and on behalf of your Representatives, you hereby waive any
requirement for the securing or posting of any bond in connection with any
such remedy. Such remedy shall not be deemed to be the exclusive remedy for
the breach of this Agreement, but shall be in addition to all of the
remedies available to the Company, at law or in equity.
10. Consent to Jurisdiction; Service of Process Venue. For yourself and on
behalf of your Representatives, you hereby irrevocably and unconditionally
(i) consent to the submission to the exclusive jurisdiction of the courts
of the State of California and of the United States of America located in
the State of California for any actions, suits or proceedings arising out
of or relating to this Agreement, (ii) agree not to commence any action,
suit or proceeding relating thereto except in such courts and in accordance
with the provisions of this Agreement, (iii) agree that service of any
process, summons, notice or document by U.S. registered mail or as
otherwise provided in this Agreement shall be effective service of process
for any action, suit or proceeding brought against you or your
Representatives, as the case may be, in any such court, (iv) waive any
objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement, in the courts of the State of California or the
United States of America located in the State of California, and (v) agree
not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California, without
giving effect to the principles of conflict of laws thereof.
12. Entire Agreement. This Agreement contains the entire understanding between
the parties with respect to the matters contemplated by this Agreement and
supersedes all prior written or oral communications, negotiations,
understandings or agreements of any kind with respect to such matters.
13. Amendments. No amendment or modification of this Agreement shall be
effective unless made or agreed to in writing by an executive officer of
the Company.
14. Parties in Interest. This Agreement shall be binding on the parties and
their respective Representatives and their respective successors and
assigns and shall inure to the benefit of the parties and their respective
successors and assigns.
15. Counterparts. This Agreement may be executed in counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
16. Heading. Paragraph headings in the Agreement are for convenience only and
shall not be deemed to be part of this Agreement.
Very truly yours,
U.S. Laboratories Inc.
July 10, 2002
Page 5
BUREAU VERITAS S.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Chief Executive Officer
Confirmed and Agreed to on July 10, 2002:
U.S. LABORATORIES INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer