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Exhibit 99(d)(2)
SUMMIT TECHNOLOGY, INC.
21 HICKORY DRIVE
WALTHAM, MASSACHUSETTS 02451
NOVEMBER 5, 1999
CONFIDENTIAL
Alcon Laboratories, Inc.
P.O. Box 6600
Fort Worth, TX 76115
Gentlemen:
In order to allow you to evaluate a possible business transaction (the
"Proposed Transaction") with Summit Technology, Inc. (the "Company", which term
shall include the Company and its subsidiaries), we have and will deliver to
you, upon your execution and delivery to us of this agreement, certain
information about the Company. All information about the Company furnished by us
or our Representatives (as defined below), whether oral or written, and
regardless of the manner in which it is furnished, is referred to in this letter
agreement as "Evaluation Material". Evaluation Material includes any reports or
analyses that you prepare that include or are based on information about the
Company that we provide to you. Evaluation Material does not include, however,
information which (a) is or becomes generally available to the public other than
as a result of a disclosure by you or your Representatives, (b) was known by you
prior to its disclosure by us or our Representatives or (c) becomes available to
you from a person other than us or our Representatives who is not known to you
to be otherwise bound by a confidentiality agreement with us or any
Representative of ours, or is otherwise not known to you to be under an
obligation to us or any Representative of ours not to transmit the information
to you. As used in this letter agreement, the term "Representative" means, as to
any person, such person's affiliates and its and their directors, officers,
employees, agents, advisors (including, without limitation, financial advisors,
counsel and accountants) and controlling persons. As used in this letter
agreement, the term "person" shall be broadly interpreted to include, without
limitation, any corporation, company, partnership, other entity or individual.
Except as required by law, unless otherwise agreed to in writing by us,
you agree (a) to keep all Evaluation Material confidential and not to disclose
or reveal any Evaluation Material to any person other than your Representatives
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 to cause those persons to
observe the terms of this letter agreement, (b) not to use Evaluation Material
for any purpose other than in connection with your evaluation of the Proposed
Transaction or the
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consummation of the Proposed Transaction and (c) not to disclose to any person
(other than those of your Representatives who are actively and directly
participating in your evaluation of the Proposed Transaction or who otherwise
need to know for the purpose of evaluating the Proposed Transaction and, in the
case of your Representatives, whom you will cause to observe the terms of this
letter agreement) any information about the Proposed Transaction.
In the event that you are requested pursuant to, or required by,
applicable law or regulation or by legal process to disclose any Evaluation
Material or any other information concerning the Company or the Proposed
Transaction, you agree that you will provide us with prompt notice of such
request or requirement in order to enable us to seek an appropriate protective
order or other remedy, to consult with you with respect to our taking steps to
resist or narrow the scope of such request or legal process, or to waive
compliance, in whole or in part, with the terms of this letter agreement. In any
such event you will use your reasonable best efforts to ensure that all
Evaluation Material and other information that is so disclosed will be accorded
confidential treatment.
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 in
the event that we, in our sole discretion, so request or the Proposed
Transaction is not consummated by you, you will, upon our request, promptly
deliver to us all Evaluation Material, including all copies, reproductions,
summaries, analyses or extracts thereof or based thereon in your possession
or in the possession of any Representative of yours.
You understand and acknowledge that neither we nor any of our
Representatives (including without limitation any of our directors, officers,
employees, or agents) make any representation or warranty, express or implied,
as to the accuracy or completeness of the Evaluation Material. You agree that
neither we nor any of our Representatives shall have any liability to you or to
any of your Representatives relating to or resulting from the use of the
Evaluation Material or any errors therein or omissions therefrom. Only those
representations or warranties that are made in a final definitive agreement,
when, as and if executed, and subject to such limitations and restrictions as
may be specified therein, will have legal effect.
It is understood and agreed that until a final acquisition agreement
regarding the Proposed Transaction has been executed by you and us, neither you
nor we are under any legal obligation and shall have no liability to the other
of any nature whatsoever with respect to the Proposed Transaction by virtue of
this letter agreement except for the matters that we have agreed to in this
letter agreement.
Without prejudice to the rights and remedies otherwise available to us,
you agree that we shall be entitled to equitable relief by way of injunction or
otherwise if you or any of your Representatives breach or threaten to breach any
of the provisions of this letter agreement.
It is further understood and agreed that no failure or delay by us in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or
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partial exercise thereof preclude any other or further exercise of any right,
power or privilege hereunder.
This letter agreement shall be governed by and construed in accordance
with the laws of The Commonwealth of Massachusetts applicable to contracts
executed in and to be performed in that state.
Except as to your affiliates, any assignment of this letter agreement
by you without our prior written consent shall be void.
This letter agreement contains the entire agreement between you and us
concerning confidentiality of the Evaluation Material, and no modification of
this letter agreement or waiver of the terms and conditions hereof shall be
binding upon you or us, unless approved in writing by each of you and us.
Please confirm your agreement with the foregoing by signing in the
space provided below.
SUMMIT TECHNOLOGY, INC.
By: /s/ James A. Lightman
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Title: VP and General Counsel
Accepted and agreed
as of the date
first written above:
ALCON LABORATORIES, INC.
By: /s/ Elaine E. Whitbeck
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Title: Vice President
and Ass. Gen. Counsel
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