IBA
ION BEAM APPLICATIONS S.A.
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May 17, 1999
VIA FEDERAL EXPRESS
SteriGenics International, Inc.
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RE: NONDISCLOSURE AGREEMENT
In connection with the consideration by Ion Beam Applications, s.a. ("IBA")
and SteriGenics International Inc. (the "Company") of a possible business
combination transaction (a "Transaction") the Company and IBA expect to make
available to one another certain nonpublic information concerning their
respective businesses, financial conditions, operations, assets and liabilities.
As a condition to such information being furnished to each party and its
directors, officers, employees, agents or advisors (INCLUDING without limitation
attorneys, accountants, consultants, bankers and financial advisors)
(collectively, "Representatives"), each party agrees to treat any nonpublic
information concerning the other party (whether prepared by the disclosing
party, its advisors or otherwise and irrespective of the form of communication)
which is furnished hereunder to a party or to its Representatives now or in the
future by or on behalf of the disclosing party (herein collectively referred to
as the "Evaluation Material") in accordance with the provisions of this letter
agreement, and to take or abstain from taking certain other actions hereinafter
set forth.
1. EVALUATION MATERIAL. The term "Evaluation Material" also shall be deemed
to include all notes, analyses, compilations, studies, interpretations or other
documents prepared by each party or its Representatives which contain, reflect
or are based upon, in whole or in part, the information furnished to such party
or its Representatives pursuant hereto which is not available to the general
public. 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 breach
of this Agreement by the receiving party or its Representatives, (ii) was within
the receiving party's possession prior to its being furnished to the receiving
party by or on behalf of the disclosing party, provided that the source of such
information was not known by the receiving party to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the disclosing party or any other party with
respect to such information, (iii) is or becomes available to the receiving
party on a non-confidential basis from a source other than the disclosing party
or any of its Representatives, provided that such source was not known by the
receiving party to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the disclosing
party, (iv) is independently developed by the recipient without use of
Evaluation Material, or (v) is disclosed by the recipient or its Representatives
with the disclosing party's prior written approval.
2. PURPOSE OF DISCLOSURE OF EVALUATION MATERIAL. It is understood and
agreed to by each party that any exchange of information under this agreement
shall be solely for the purpose of evaluating a Transaction between the parties
and not to affect, in any way, each party's relative competitive position to
each party or to other entities. It is further agreed, that the information to
be disclosed to each other shall only be that information which is reasonably
necessary to a Transaction and that information which is not reasonably
necessary for such purposes shall not be disclosed or exchanged.
3. USE OF EVALUATION MATERIAL. Each party hereby agrees that it and its
Representatives shall use the other's Evaluation Material solely for the purpose
of evaluating a possible Transaction between the parties,
and that the disclosing party's Evaluation Material will be kept confidential
and each party and its Representatives will not disclose or use for purposes
other than the evaluation of a Transaction any of the other's Evaluation
Material in any manner whatsoever, provided, however, that (i) the receiving
party may make any disclosure of such information to which the disclosing party
gives its prior written consent and (ii) any of such information may be
disclosed to the receiving party's Representatives who need to know such
information for the sole purpose of evaluating a possible Transaction between
the parties, who are provided with a copy of this letter agreement and who are
directed by the receiving party to treat such information as confidential.
4. SECURITIES LAWS. Each party hereby acknowledges that it is aware, and
will advise its Representatives who are informed as to the matters which are the
subject of this letter, that the United States securities laws prohibit any
person who has received from an issuer material, non-public information
concerning the matters which are the subject of this letter from purchasing or
selling securities of such issuer 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.
5. NON-DISCLOSURE. In addition, each party agrees that, without the prior
written consent of the other party, its Representatives will not disclose to any
other person the fact that any Evaluation Material has been made available
hereunder, that discussions or negotiations are taking place concerning a
Transaction involving the parties or any of the terms, conditions or other facts
with respect thereto (including the sums thereof) provided, that a party may
make such disclosure if in the written opinion of a party's outside counsel,
such disclosure is necessary to avoid committing a violation of law. In such
event, the disclosing party shall use its best efforts to give advance notice to
the other party. In this regard the parties acknowledge that the Company is
publicly traded in the United States, IBA is publicly traded in Belgium and IBA
has filed a Schedule 13D with the Securities and Exchange Commission with
respect to its ownership shares of common stock of the Company.
6. REQUIRED DISCLOSURE. In the event that a party or its Representatives
are requested or required (by oral questions, interrogatories, requests for
information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the other party's Evaluation
Material, the party requested or required to make the disclosure shall provide
the other party with prompt notice of any such request or requirement so that
the other party may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this letter agreement. If, in the
absence of a protective order or other remedy or the receipt of a waiver by such
other party, the party requested or required to make the disclosures or any of
its Representatives are nonetheless, in the opinion of counsel, legally
compelled to disclose the other party's Evaluation Material to any tribunal, the
party requested or required to make the disclosure or its Representative may,
without liability hereunder, disclose to such tribunal only that portion of the
other party's Evaluation Material which such counsel advises is legally required
to be disclosed, provided that the party requested or required to make the
disclosure exercises its reasonable efforts to preserve the confidentiality of
the other party's Evaluation Material, including, without limitation, by
cooperating with the other party to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded the other
party's Evaluation Material by such tribunal.
7. TERMINATION OF DISCUSSION. If either party decides that it does not wish
to proceed with a Transaction with the other party, the party so deciding will
promptly inform the other party of that decision by giving written notice
thereof. In that case, or at any time upon the request of either disclosing
party for any reason, each receiving party and its Representatives (except as
otherwise required by law or the customary record keeping policies of the
receiving party or its Representatives) will make reasonable efforts either to
promptly deliver to the disclosing party, or to destroy, all written Evaluation
Material (and all copies thereof and extracts therefrom) furnished to the
receiving party or its Representatives by or on behalf of the disclosing party
pursuant hereto, or the receiving party will make reasonable efforts to delete
from any retained document any reference to Evaluation Material furnished to the
receiving party or its Representatives by or on behalf of the disclosing party
pursuant hereto. Notwithstanding the return, destruction or retention of any
Evaluation Material, each party and its Representatives will continue to be
bound by its obligations of confidentiality and other obligations hereunder.
8. REPRESENTATION OF ACCURACY. Each party understands and acknowledges that
neither party nor any of its Representatives makes any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material made available by it or to it. Each party agrees that
neither party nor any of its Representatives shall have any liability to the
other party or to any of its Representatives relating to or resulting from the
use of or reliance upon such other party's Evaluation Material or any errors
therein or omissions, therefrom. Only those representations or warranties which
are made in a final definitive agreement regarding the Transaction, when, as and
if executed, and subject to such limitations and restrictions as may be
specified therein, will have any legal effect.
9. DEFINITIVE AGREEMENTS. Each party understands and agrees that no
contract or agreement providing for any Transaction involving the parties shall
be deemed to exist between the parties unless and until a final definitive
agreement has been executed and delivered. Each party also agrees that unless
and until a final definitive agreement regarding a Transaction between the
parties has been executed and delivered, neither party will be under any legal
obligation of any kind whatsoever with respect to such a Transaction by virtue
of this letter agreement except for the matters specifically agreed to herein.
For purposes of this paragraph, the term "definitive agreement" does not include
an executed letter of intent or any other preliminary written agreement. Both
parties further acknowledge and agree that each party reserves the right, in its
sole discretion, to provide or not provide Evaluation Material to the receiving
party under this Agreement, to reject any and all proposals made by the other
party or any of its Representatives with regard to a Transaction between the
parties, and to terminate discussions and negotiations at any time.
10. WAIVER. It is understood and agreed that no failure or delay by either
party 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 future exercise thereof or the exercise of any other right, power or
privilege hereunder.
11. NON-SOLICITATION. In consideration of the furnishing of Evaluation
Material hereunder, each party agrees that, for a period of two years from the
date hereof, neither such party nor any of its affiliates will solicit to employ
any of the current officers or employees of the other party with whom such party
has contact or who is specifically identified to such party during the period of
such party's investigation of the other party with respect to a possible
Transaction, so long as they are employed by the other party, without obtaining
the prior written consent of the other party; provided, however, that
solicitation for purposes of this paragraph shall not include solicitation of
employees or officers (i) who first solicit employment from such party, or (ii)
who are solicited (A) by advertising in periodicals of general circulation, or
(B) by an employee search firm on behalf of such party, so long as such party
did not direct or encourage such firm to solicit such employee or officer or any
other employees or officers of the party.
12. MISCELLANEOUS. Each party agrees to be responsible for any breach of
this agreement by any of its Representatives acting in such capacity. No failure
or delay by either party or any of its Representatives in exercising any right,
power or privileges 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, and the non-breaching
party shall be entitled to equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies shall not be deemed
to be the exclusive remedies for a breach of this letter agreement but shall be
in addition to all other remedies available at law or equity. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that either party or any of its Representatives have
breached this letter agreement, then the breaching party shall be liable and pay
to the non-breaching party the reasonable legal fees incurred in connection with
such litigation, including an appeal therefrom. In case any provision of this
agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability, of the remaining provisions of the agreement shall not in any
way be affected or impaired thereby.
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 conflicts of laws thereof. Venue for any action to enforce the
provisions of this Agreement shall be properly laid in any state or federal
court in the State of California.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing meets with your approval, please sign in the space provided
below and return a copy to us.
Very truly yours,
Ion Beam Applications, SA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
Accepted and agreed as of the date first written above:
Sterigenics International, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President & CEO