Exhibit (d)(2)
MUTUAL CONFIDENTIALITY
AND NONDISCLOSURE AGREEMENT
THIS AGREEMENT is made and entered into this 4th day of March, 2002,
by and between SYNAVANT Inc., a Delaware corporation ("SYNAVANT") with its
principal offices located at 0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000
XXX and CEGEDIM, a French corporation (the "Company") with its principal offices
located at 000 xxx x'Xxxxxxxxx, 00000 Xxxxxxxx, Xxxxxxxxxxx Xxxxx, Xxxxxx.
W I T N E S S E T H :
WHEREAS, the parties desire to evaluate a possible business
relationship or transaction between SYNAVANT and the Company, whereby the
parties may provide certain confidential information to each other concerning
their respective business, financial condition and operations. In consideration
thereof, the parties agree as follows:
1. EVALUATION MATERIAL. As used herein, the term "Evaluation
Material" means any of the following types of information: (i) all data,
reports, analyses, notes, interpretations, forecasts, records, documents,
agreements and information concerning the other party and which such party or
its Representatives (as defined below) will provide or previously has provided
to the receiving party or its Representatives or which the receiving party or
its Representatives receive or receive knowledge of or access to in connection
with its analysis of a possible business relationship or transaction between the
parties, at any time and in any form, whether or not expressly marked as
proprietary or confidential, including without limitation business plans;
customer lists; financial statements and other financial information of the
disclosing party and its customers; suppliers; know-how; strategic or technical
data; technology (including without limitation all design, manufacturing and
related technology); sales and marketing data; marketing research data; product
research and development data; software programs, designs, developments, data
and any components thereof, whether or not copyrightable; intellectual property;
pricing information; any oral, written or visual information obtained by meeting
representatives or personnel of the disclosing party or touring its facilities;
(ii) all oral or written analyses (including any valuation or proposed price or
range of prices for the stock or assets of either party), notes, analyses,
compilations, studies, interpretations or other documents and all copies thereof
prepared by either party or its Representatives, which contain, reflect or are
based upon, in whole or in part, any of the information which is described in
the preceding clause (i); and (iii) the content and substance of any discussions
or negotiations between the parties (or its Representatives), and the fact that
such discussions or negotiations have taken place. The term "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 the
receiving party or its Representatives; or (b) a party can show was within its
possession prior to its being furnished to such party by or on behalf of the
other, provided that the information was not provided to such party in violation
of a confidentiality agreement or other contractual, legal or fiduciary
obligation of confidentiality to the other party; or (c) was received by a party
from a third party owing no duty to the other and having the legal right to
transmit the same; or (d) is independently developed by a party without the aid,
application or use of the Evaluation Material.
As used herein, the term "Representatives" means, collectively, the
respective directors, officers, employees, agents, financial advisors, bankers,
lenders, accountants, attorneys, professional or technical consultants of each
party, as the context requires, to whom any of the information contained in the
Evaluation Materials has been disclosed. As used herein, the term "person" shall
be broadly interpreted to include, without limitation, any corporation,
partnership, joint venture, trust or individual.
The parties acknowledge that all Evaluation Material is the
exclusive property of the disclosing party, and the receiving party shall have
no proprietary interest therein. Each party will use the other party's
Evaluation Material solely for the purpose of evaluating the possible business
relationship or transaction and shall not use any Evaluation Material in any way
directly or indirectly detrimental to the disclosing party. The parties further
acknowledge and agree that the evaluation material disclosed pursuant to this
agreement is and shall be kept confidential. A receiving party may disclose the
Evaluation Material of the other or portions thereof only to those of its
Representatives who need to know such information for the purpose of evaluating
a possible business relationship or transaction and who agree to keep such
information confidential.
Each party will inform each of its Representatives of the
confidential nature of the Evaluation Material and of the provisions of this
agreement, and will cause each such Representative to agree to comply fully with
the restrictions on use of the Evaluation Material contained in this agreement
and not to disclose the information to any other individual. Each party will be
responsible for any breach of this agreement by any of its Representatives or by
any other person to whom information is provided by such party or its
Representatives, in contravention of this agreement.
Without the prior written consent of the other party, each of the
parties agrees that it will not, and will direct its Representatives not to,
disclose to any person either the fact that any investigations, discussions or
negotiations are taking place concerning a possible business relationship or
transaction, or that either party has requested or received Evaluation Material
from the other, or any of the terms, conditions, or other facts with respect to
any such business relationship or transaction, including, but not limited to,
the status thereof and the terms or provisions of any proposal or offer made by
either party, whether written or oral; provided that either party may make such
disclosures required by applicable securities or antitrust laws as are necessary
to comply therewith or with the rules and regulations of any applicable stock
exchange, provided that the nondisclosing party shall be given reasonable prior
notice thereof and an opportunity to comment on or object thereto.
2. COMPELLED DISCLOSURE. In the event that a party or any of its
Representatives become legally compelled (by deposition, interrogatory, request
for documents, subpoena, civil investigative demand or similar process) to
disclose any of the other party's Evaluation Material, such party shall provide
the other party with prompt prior written notice of such requirement so that it
may seek a protective order or other appropriate remedy and will cooperate fully
with its efforts to obtain any such order or other relief. In the event that
such protective order or other remedy is not obtained, the party being compelled
will provide only that portion of the Evaluation Material which it is advised by
written opinion of counsel is legally required, and such disclosure will not
result in any liability hereunder unless such disclosure was caused by or
resulted from a previous disclosure by such party or its Representatives that
was not permitted by this agreement. Additionally, such party agrees to exercise
its reasonable best efforts to obtain a protective order or other reliable
assurance that confidential treatment will be accorded such Evaluation Material.
The party being compelled to make disclosure shall be reimbursed by the
nondisclosing party for all reasonable expenses incurred by it or its
Representatives in complying with this paragraph 2, except to the extent such
amounts are recoverable from the party compelling disclosure. Such party agrees
to exercise its best efforts to recover all expenses which are recoverable from
the party compelling disclosure.
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3. TREATMENT OF INFORMATION. If at any time either party so
requests, the other party promptly will return to the requesting party all
copies of such party's Evaluation Material identified in subparagraph 1 in its
possession or in the possession of its Representatives, and will destroy all
copies of any analyses, compilations, studies or other documents prepared by it
or for its use containing or reflecting any such Evaluation Material (including,
but not limited to, those identified in subparagraphs 1(ii) and (iii) above),
and will furnish the requesting party with prompt written confirmation of such
destruction to the best of its knowledge. Notwithstanding the return or
destruction of any Evaluation Material, the parties will continue to be bound by
their confidentiality and other obligations under this Agreement.
Notwithstanding the foregoing, in no event will either party be obligated to
return all copies of such analyses, compilations, studies or other documents
prepared by it or for its use by its Representatives containing or reflecting
any such Evaluation Material, provided however, that pursuant to this paragraph
3, such party will destroy all such copies of any analyses, compilations,
studies or other documents and accordingly provide to the other written
confirmation of such destruction to the best of its knowledge.
4. DUE DILIGENCE. It is agreed that all (a) communications regarding
a possible business relationship or transaction, (b) requests for additional
information, (c) requests for facility tours or management meetings, and (d)
discussions or questions regarding procedures, must be submitted or directed to
the Chief Executive Officer of such party or its financial advisor unless
otherwise directed in writing by a party.
5. NO WARRANTY OF ACCURACY. The parties understand and acknowledge
that neither party is hereby making any representation or warranty, express or
implied, as to the accuracy or completeness of the Evaluation Material provided
by such party, and neither party nor any of its officers, directors or agents
will have any liability to the other or any person resulting from use of the
Evaluation Material by the other party or its Representatives. Only those
representations or warranties that are made in a definitive written agreement
between the parties (a "Definitive Agreement") when, as, and if it is executed,
and subject to such limitations and restrictions as may be specified in such
Definitive Agreement, will have any legal effect.
6. NO OBLIGATION WITH RESPECT TO NEGOTIATIONS. The parties
understand and agree that no contract or agreement providing for any business
relationship or transaction shall be deemed to exist unless and until a
Definitive Agreement has been executed and delivered, and each party hereby
waives, in advance, any claims (including, without limitation, breach of
contract) in connection with any such business relationship or transaction
unless and until the parties shall have entered into a Definitive Agreement.
Each party reserves the right, in its sole discretion, to reject any
and all proposals made by the other or any of its Representatives with respect
to a business relationship or transaction or otherwise and to terminate
negotiations and discussions with respect thereto at any time, and that each
party's obligations under this confidentiality and non-disclosure agreement will
survive any such rejection or termination. Each party also agrees that unless
and until a Definitive Agreement with respect to any business relationship or
transaction has been executed and delivered, neither party will have any legal
obligation of any kind whatsoever with respect to any such business relationship
or transaction by virtue of this confidentiality and non-disclosure agreement or
any other written or oral expression with respect to such transaction except, in
the case of this confidentiality and non-disclosure agreement, 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, nor does it include any
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written or verbal agreement in principle or acceptance of an offer or bid,
except to the extent therein otherwise provided therein.
7. STANDSTILL. Until the expiration of eighteen (18) months from the
date hereof, neither party, its affiliates (as defined in Rule 405 of the
Securities Act of 1933, hereinafter "Affiliates") or those Representatives to
whom the Evaluation Material has been disclosed or who have been made aware of
the discussions between the parties concerning a possible business relationship
or transaction, shall, without the prior written consent of the Board of
Directors of the other party, (a) in any manner acquire, agree to acquire, or
make any proposal to acquire, directly or indirectly, any voting securities of
the other party, or any rights or options to acquire such ownership; (b) propose
to enter into, directly or indirectly, any merger or business combination
involving the other party; (c) make, or in any way participate, directly or
indirectly, in any solicitation of "proxies" (as such term is used in Regulation
14A under the Securities Exchange Act of 1934, as amended) to vote or seek to
advise or influence any person with respect to the voting of any voting
securities of the other party; (d) form, join or in any way participate in a
"group" (within the meaning of Section 13(d) of the Securities Exchange Act of
1934) with respect to any voting securities of the other party; (e) otherwise
act, alone or in concert with others, to seek to control or influence the
management, Board of Directors or policies of the other party; or (f) publicly
disclose any intention, plan or arrangement inconsistent with the foregoing.
Notwithstanding the foregoing, clause (a) of the preceding sentence shall not
apply to those Representatives, which are global financial institutions, acting
as financial advisors, provided, however, that they ensure within their
departments adequate confidentiality of the proposed transaction through the use
of their standard compliance policies and rules, such as, but not limited to,
"Chinese Walls."
8. SECURITIES LAWS. The parties hereby acknowledge that they are
aware, and that they will advise their Representatives who are informed as to
the matters that are the subject of this Agreement, that the French and the
United States securities laws prohibit any person who has received material,
non-public information concerning an issuer from purchasing or selling
securities of the issuer to whom such matters relate 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 or
otherwise to violate such securities laws.
9. NONSOLICITATION OF EMPLOYEES. For a period of one (1) year
following the execution of the agreement, both parties agree that to the extent
any individual that is a Representative of either party has access to or
knowledge of the Evaluation Material (including those personnel who are at the
senior management, vice president and regional manager level of either party's
organization), such individual will not, on its own behalf or in the service or
on behalf of others, solicit, encourage the hiring, authorize the hiring or hire
for work as an employee, consultant or contractor in any competing business or
attempt to solicit, divert or hire for work in any competing business any person
or persons, excluding all administrative personnel (administrative personnel
includes secretarial personnel or personnel whose compensation levels are less
than US$ 50,000 per year), employed by the other party (or previously employed
by the other party within six months prior to such hiring or solicitation),
whether or not such employment is pursuant to a written consent with the other
party during the term provided in this paragraph 9.
10. MISCELLANEOUS. The parties agree that this agreement shall be
for the benefit of the parties hereto. The parties also agree that money damages
would not be a sufficient remedy for any violation of the terms of this
agreement, and, accordingly, that the parties shall be entitled to equitable
relief, including injunctive relief and specific performance in the event of any
breach of the provisions of the agreement, in addition to all other remedies
available at law or in equity.
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It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This Agreement will
be governed by and construed in accordance with the laws of the State of New
York, USA, without reference to conflicts of laws principles. The term of this
agreement shall be a period of two (2) years from the date of this Agreement or
such longer period as any of the Evaluation Material may be protected by the
applicable law. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the remainder of this agreement.
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IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as
of the date first above written.
SYNAVANT: CEGEDIM:
BY: /s/ Xxxxxxx X. Xxxxxxxx BY: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxxxx
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Title: Senior Vice President and Title: Managing Director
General Counsel
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