EXHIBIT 10.2
CONFIDENTIALITY
AGREEMENT
This Confidentiality Agreement (this “
Agreement ”) is entered into as of this 5
th day
of June, 2007, between InFocus Corporation, an Oregon corporation
(the “ InFocus ”), and Caxton Associates,
L.L.C., a Delaware limited liability company (“ Caxton
”).
WHEREAS, InFocus
is currently (a) seeking to identify and recruit a new Chief
Executive Officer (the “ Search Process ”) and
(b) pursuing its ongoing exploration of strategic alternatives that
may be available to InFocus (the “ Strategic Alternatives
Process ”); and
WHEREAS, pursuant
to that certain Shareholders Agreement entered into as of the date
hereof between InFocus and the Caxton Entities (as defined
therein), InFocus has agreed to provide to Caxton, subject to
existing contractual limitations, certain Non-Public Information
(as defined herein) relating to the Search Process and the
Strategic Alternatives Process, and Caxton has agreed to provide
certain assistance in connection therewith.
NOW, THEREFORE, in
consideration of the premises, the mutual covenants and agreements
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section
1.
In consideration for, and as a condition of such information being
furnished to Caxton and its officers, members, control persons,
employees, agents, financial and other advisors (including, without
limitation, attorneys and any representatives of such advisors)
(collectively, “ Representatives ”), Caxton
agrees to treat any information that is furnished to it or to its
Representatives by or on behalf of InFocus concerning the Search
Process and the Strategic Alternatives Process, together with any
notes, analyses, compilations, studies, interpretations, documents
or records containing, referring, relating to, based upon or
derived from such information, in whole or in part (collectively,
the “ Non-Public Information ”), in accordance
with the provisions of this Agreement.
Section
2.
The term “Non-Public Information” does not include
information that (i) is or becomes generally available to the
public other than as a result of a disclosure by Caxton or its
Representatives in violation of their obligations hereunder, (ii)
was within Caxton’s possession prior to its being furnished
to it or is independently developed by Caxton or its
Representatives without violation of their obligations hereunder,
or (iii) becomes available to Caxton on a non-confidential
basis from a source other than InFocus or any of its
Representatives; provided, that in the case of (ii) and (iii)
above, the source of such information was not known by Caxton to be
bound by a confidentiality agreement with or other contractual,
legal or fiduciary obligation of confidentiality to InFocus or any
other party with respect to such information.
Section
3.
Caxton hereby agrees that it and its Representatives shall use the
Non-Public Information solely for the purpose of assisting in the
Search Process and the Strategic Alternatives Process, that the
Non-Public Information received or generated by it or its
Representatives will be kept confidential and that neither Caxton
nor its Representatives will disclose any of the Non-Public
Information in any manner whatsoever to any other person not bound
hereby; provided , however , that (i) Caxton may make
any disclosure of such information to which InFocus gives its prior
written consent, and (ii) any of such information may be disclosed
to Representatives who need to know such information in connection
with the Search Process or the Strategic Alternatives Process and
who are provided with a copy of this Agreement and agree to be
bound by the terms hereof to the same extent as if they were
parties hereto. In any event, Caxton shall be responsible for
any breach of this Agreement by its Representatives and agrees, at
its sole expense, to take all reasonable measures to restrain its
Representatives from prohibited or unauthorized disclosure or use
of the Non-Public Information.
Section
4.
Caxton hereby agrees that, without the prior written consent of
InFocus, neither it nor its Representatives will disclose to any
other person any of the terms, conditions or other facts with
respect to the Search Process or the Strategic Alternatives
Process, including the status thereof; provided ,
however , that Caxton and its Representatives may disclose
such matters to, and may discu
