Exhibit 4.1
CONFIDENTIALITY
AGREEMENT
Michael Bresson
General Counsel
Apogent Technologies Inc.
30 Penhallow Street
Portsmouth, NH 03801
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Re:
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Confidentiality Agreement
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Dear Mr. Bresson:
In
connection with Fisher Scientific International Inc.’s
(“Fisher”) and Apogent Technologies Inc.’s
(“Apogent”) consideration of a possible transaction (a
“Transaction”) between Fisher and Apogent, Fisher will
make available to Apogent and its Representatives (as defined
below) certain information concerning the business, financial
condition, operations, assets, plans, prospects and liabilities of
Fisher and Apogent will make available to Fisher and its
Representatives certain information concerning the business,
financial condition, operations, assets, plans, prospects and
liabilities of Apogent. All such information (whether written or
oral) of any kind furnished in connection with the Transaction
(whether before or after the date hereof) by either party or its
affiliates or its or such affiliates’ respective directors,
officers, employees, representatives (including, without
limitation, financial advisors, attorneys and accountants) or
agents (collectively, with respect to either party, its
“Representatives”) to the other party or such other
party’s Representatives and all analyses, notes, studies,
interpretations, compilations, forecasts, studies or other
documents prepared by either party or its respective
Representatives in connection with the review of, or interest in, a
Transaction which contain or reflect any such information is
referred to as the “Information.” The term Information
will not, however, include information which (i) is or becomes
publicly available other than as a result of a disclosure by either
party or its respective Representatives in violation of this letter
agreement or (ii) is or becomes available to either party on a
nonconfidential basis from a source which, to the best of such
party’s knowledge, is not prohibited from disclosing such
information to such party by a legal, contractual or fiduciary
obligation to the other party.
In
furtherance of the foregoing and as a condition to the provision of
any Information by either party, each of Fisher and Apogent hereby
acknowledges and agrees as follows:
It
and its Representatives (i) will keep the Information
confidential in accordance with the terms of this letter agreement
and will not (except as required by applicable law, regulation or
legal process, and only after compliance with paragraph 3 below),
without the other party’s prior written consent, disclose any
Information in any manner whatsoever and (ii) will not use any
Information other than in connection with the evaluation of a
Transaction; provided, however, that it may disclose the
Information to its Representatives (a) who need to know the
Information for the purpose of evaluating a Transaction,
(b) who are informed by it of the
confidential nature of the
Information and (c) who agree to act in accordance with the
terms of this letter agreement. It will cause its Representatives
to observe the terms of this letter agreement, and it will be
responsible for any breach of this letter agreement by any of its
Representatives.
Neither
it nor its Representatives will (except as required by applicable
law, regulation or legal process, and only after compliance with
paragraph 3 below), without the prior written consent of the other
party, disclose to any person the fact that the Information exists
or has been made available, that a Transaction is under
consideration, or that discussions or negotiations are taking or
have taken place concerning a Transaction or any term, condition or
other fact relating to a Transaction or such discussions or
negotiations, including, without limitation, the status
thereof.
In
the event that it or any of its Representatives are requested
pursuant to, or required by, applicable law, regulation or legal
process to disclose any of the Information or any other matter
covered by this letter agreement, it will notify the other party
promptly so that such other party may seek a protective order or
other appropriate remedy, or, in its sole discretion, waive
compliance with the terms of this letter agreement. In the event
that no such protective order or other remedy is obtained, or, that
the other party does not waive compliance with the terms of this
letter agreement, it will furnish only that portion of the
Information or other information covered by paragraph 2 which it is
advised by its counsel is legally required.
If
a party determines not to proceed with a Transaction, it will
promptly inform the other party of that decision and, in that case,
and at any time upon the request of such other party, it will
either (i) promptly destroy all copies of the Information in
written or other recorded form in its or its Representatives’
possession and confirm such destruction to such other party in
writing or (ii) promptly deliver to such other party at its
own expense all copies of the Information in its or its
Representatives’ possession. Any Information will continue to
be subject to the terms of this letter agreement.
Neither
Fisher or Apogent, as applicable, nor its Representatives, nor any
of its or their respective officers, directors, employees, agents
or controlling persons within the meaning of Section 20 of the
Securities Exchange Act of 1934, as amended, makes any express or
implied representation or warranty as to the accuracy or
completeness of the Information, and it agrees that no such person
will have any liability relating to
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