Exhibit 10.2
EON LABS, INC.
1999 Marcus Avenue
Lake Success, NY 11042
February 11, 2005
Novartis Corporation
608 Fifth Avenue
New York, NY 10020
Confidentiality
Agreement
Ladies and Gentlemen:
In order to allow you to evaluate a
possible negotiated (except as permitted by this letter agreement)
transaction (the “ Proposed Transaction
”) with Eon Labs, Inc. (the “ Company
”), you have requested, following your execution and delivery
to us of this letter agreement, certain information about the
properties, employees, finances, businesses and operations of the
Company. All information about the Company and its
subsidiaries, whether oral, written or electronic, furnished by us
or our Representatives (as defined below), whether furnished before
or after the date hereof, is referred to in this letter agreement
as “ Evaluation Material ”.
Evaluation Material also includes all notes, analyses,
compilations, studies, interpretations or other documents prepared
by or for you or your Representatives which contain, reflect or are
based upon, in whole or in part, the information furnished to you
or your Representatives pursuant hereto. Evaluation Material
does not include, however, information which (a) is or becomes
publicly available other than as a result of a disclosure by you or
your Representatives in violation of this letter agreement, (b) was
available to you on a nonconfidential basis prior to its disclosure
by us or our Representatives, (c) becomes available to you on a
nonconfidential basis from a person (other than us or our
Representatives) who to your knowledge after inquiry is not
prohibited from disclosing such information to you by a legal,
contractual or fiduciary obligation to us, or (d) was
independently developed by you without your reference to the
Evaluation Material. As used in this letter agreement, the
term “ Representative ” means, as to any
person, such person’s affiliates and its and its
affiliates’ directors, officers, employees, agents, advisors
(including, without limitation, financial advisors, counsel and
accountants) and other representatives and financing sources.
As used in this letter agreement, the term “
person ” shall be broadly interpreted to
include, without limitation, any corporation, company, partnership
or other legal or business entity or any individual. As used
in this letter agreement, “ Law ” means
any applicable law, regulation (including, without limitation, any
rule or regulation of any organized securities exchange, market or
automated quotation system on which any of a person’s
securities are listed or quoted) or valid legal process.
Subject to the immediately
succeeding paragraph, unless otherwise agreed in writing by us, (a)
you agree, except as required by Law in connection with a tender
offer permitted by this letter agreement, to keep confidential and
not to disclose or reveal, directly or
indirectly, any Evaluation Material to any
person other than those of your Representatives (i) who are
actively and directly participating in your evaluation of the
Proposed Transaction or who otherwise need to know the Evaluation
Material for the purpose of evaluating the Proposed Transaction and
(ii) whom you will cause to observe the terms of this letter
agreement, (b) you agree not to use Evaluation Material for any
purpose other than in connection with your evaluation of the
Proposed Transaction or the consummation of the Proposed
Transaction and (c) you and we mutually agree, except as
required by Law, not to disclose to the public or to any person
(other than those of our respective Representatives who are
actively and directly participating in the evaluation of the
Proposed Transaction or who otherwise need to know for the purpose
of evaluating the Proposed Transaction and whom you and we,
respectively, will cause to observe the terms of this letter
agreement) any information about the Proposed Transaction, or the
terms or conditions or any other facts relating thereto, including,
without limitation, the fact that discussions are taking place with
respect thereto or the status thereof, the existence of this letter
agreement, or the fact that Evaluation Material has been made
available to you or your Representatives; provided ,
however , that any disclosure prohibited by this paragraph
may be made under the circumstances described in the following
paragraph to the extent you comply with the covenants in such
paragraph. Each party acknowledges that it shall be
responsible for any breach of the terms of this letter agreement by
it or its Representatives.
In the event that you or any of your
Representatives are requested or required in a judicial or
regulatory proceeding or otherwise required by Law as permitted
above to disclose any Evaluation Material, you agree to provide the
Company with prompt notice of such request or requirement in order
to enable the Company to seek an appropriate protective order or
other remedy, to consult with you with respect to the Company
taking steps to resist or narrow the scope of such request or
requirement or to waive compliance, in whole or in part, with the
terms of this letter agreement. You also agree, to the extent
legally permissible, (i) to provide the Company with a list of any
Evaluation Material you or any of your Representatives intend to
disclose in compliance with this paragraph (and, if applicable, the
text of the disclosure language itself) in advance of any such
disclosure, and (ii) to cooperate with the Company to the extent it
may seek to limit such disclosure. In the event that such
protective order or other remedy is not obtained, or the Company
waives compliance, in whole or in part, with the terms of this
letter agreement, you or your Representative will use reasonable
best efforts to disclose only that portion of the Evaluation
Material that is legally required to be disclosed and to ensure
that all Evaluation Material so disclosed will be accorded
confidential treatment.
In addition, if you determine that
you do not wish to proceed with the Proposed Transaction, you will
promptly advise us of that decision. In that case or upon the
written request of the Company, you will (and will cause your
Representatives to), at your election, promptly deliver to the
Company or destroy (provided that any such destruction shall be
certified by a duly authorized Representative of yours) all
Evaluation Material (including all copies thereof), including,
without limitation, expunging to the extent practicable all
Evaluation Material from any computer, word processor or other
device in your possession, except that one copy of all such
Evaluation Material may be kept in your legal department for
compliance purposes.
You agree that until the date that
is twelve (12) months from the date hereof (the
“Restricted Period” ), without the prior
approval of a majority of the members of the
2
Company’s Board of Directors and a
majority of the members of the special committee of the
Company’s Board of Directors formed in connection herewith
(“ Special Committee ”), you and your affiliates
will not, and you will cause your Representatives (in their
capacity as such) not to (and you and they will not join or form a
group within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (a “13D Group”
), act in concert or participate with any other persons to),
directly or indirectly: (a) acquire or offer to acquire, seek,
propose or agree to acquire,
