Exhibit (c)(3)
ORACLE(R)
NONDISCLOSURE AGREEMENT FOR STRATEGIC MATTERS
Effective Date: September 11, 1998.
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This Confidential Disclosure Agreement ("Agreement") is entered into by Oracle
Corporation ("Oracle") located at 000 Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx,
00000 and Concentra Corp. ("Company") located at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX
00000-0000.
Oracle and the Company are entering into discussions concerning a possible
strategic transaction (the "Transaction"). Oracle and the Company expect to
make available to one another certain nonpublic information concerning their
respective business prospects and plans, financial condition, operations, assets
and liabilities. As a condition to such information being furnished to each
party and the directors, officers, employees, agents or advisors of such party
or its subsidiaries (including, without limitation, attorneys, accountants,
consultants, bankers and financial advisors) (collectively, "Representatives"),
each party agrees to treat any nonpublic information concerning the other party
or its subsidiaries, which is furnished hereunder to a party or to its
Representatives now or in the future by or on behalf of the disclosing party
(collectively, the "Evaluation Material"), under the terms of this Agreement.
1. Evaluation Material. The term "Evaluation Material" also shall be deemed to
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include all notes, analyses, compilations, studies, plans, interpretations or
other documents prepared by each party or its Representatives which contain,
reflect or are based upon, in whole or in part, the information furnished to
such party or its Representatives pursuant hereto which is not available to the
general public. The term "Evaluation Material" does not include information
which (i) is or becomes generally available to the public other than as a result
of a breach of this Agreement by the receiving party or its Representatives,
(ii) was within the receiving party's possession prior to its being furnished to
the receiving party by or on behalf of the disclosing party, provided that the
source of such information was not known by the receiving party to be bound by a
confidentiality agreement with the disclosing party, (iii) is or becomes
available to the receiving party on a non-confidential basis from a source other
than the disclosing party or any of its Representatives, provided that such
source was not known by the receiving party to be bound by a confidentiality
agreement with the disclosing party with respect to such information, (iv) is
disclosed by the disclosing party to a third party without a duty of
confidentiality, (v) is independently developed by the recipient without use of
Evaluation Material, or (vi) is disclosed under operation of law.
2. Non-Disclosure. In addition, each party agrees that, without the prior
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written consent of the other party, its Representatives will not disclose to any
other person the other party's Evaluation Material, that any Evaluation Material
has been made available hereunder, that discussions or negotiations between the
parties are taking place concerning the Transaction or any of the terms,
conditions or other facts with respect thereto (including the status thereof).
However, a party may make such disclosure if in the written opinion of a party's
outside counsel, such disclosure is necessary to avoid committing a violation of
law. In such event, the disclosing party shall use its best efforts to give
advance notice to the other party.
3. Residuals. Each party may freely use the "residuals" from the Evaluation
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Material of the other party, provided that each party shall maintain the
confidentiality of the other party's Evaluation Material as required herein.
The term "residuals" shall mean the Evaluation Material in nontangible form
(i.e., not written or other documentary form, including tape or disk), which may
be retained by employees of either party who have had access to the Evaluation
Material, including ideas, know-how, or techniques contained therein, but not as
a result of any deliberate effort to memorize the information. Each party shall
have no obligation to limit or restrict the assignment of its employees or to
pay royalties to the other party for any work resulting from the use of
residuals.
4. Independent Development. Nothing in this Agreement shall be construed to
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preclude either party from developing, using, marketing, licensing, and/or
selling any independently developed software or data processing material that is
similar or related to the Evaluation Material.
5. Required Disclosure. In the event that a party or its Representatives are
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requested or required (by oral questions, interrogatories, requests for
information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the other party's Evaluation
Material, the party requested or required to make the disclosure shall provide
the other party with prompt notice of any such request or requirement so that
the other party may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver by such other party,
the party requested or required to make the disclosure or any of its
Representatives are nonetheless, in the opinion of counsel, legally compelled to
disclose the other party's Evaluation Material to any governmental authority,
the party requested or required to make the disclosure or its Representative
may, without liability hereunder, disclose to such governmental authority only
that portion of the other party's Evaluation Material which such counsel advises
is legally required to be disclosed, provided that the party requested or
required to make the disclosure exercises its reasonable efforts to preserve the
confidentiality of the other party's Evaluation Material, including, without
limitation, by cooperating with the other party to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the other party's Evaluation Material by such governmental authority.
6. Termination of Discussions. If either party decides that it does not wish to
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proceed with the Transaction with the other party, the party so deciding will
promptly inform the other party of that decision by giving a written notice of
termination. In that case, each receiving party will promptly deliver to the
disclosing party or destroy all written Evaluation Material (and all copies
thereof and extracts therefrom) furnished to the receiving party or its
Representatives by or on behalf of the disclosing party pursuant hereto. In the
event of such a decision, all other Evaluation Material prepared by the
disclosing party shall be destroyed and no copy thereof shall be retained, and
in no event shall either party be obligated to disclose or provide the
Evaluation Material prepared by it or its Representatives to the other party.
Notwithstanding the return or destruction of the Evaluation Material, each party
and its Representatives will continue to be bound by its obligations of
confidentiality and other obligations hereunder.
7. No Representation of Accuracy. Each party understands and acknowledges that
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neither party nor any of its Representatives makes any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material made available by it or to it. Each party agrees that
neither party nor any of its Representatives shall have any liability to the
other party or to any of its Representatives relating to or resulting from the
use of or reliance upon such other party's Evaluation Material or any errors
therein or omissions therefrom. Only those representations or warranties which
are made in a final definitive agreement regarding the Transaction, when, as and
if executed by both parties, and subject to such limitations and restrictions as
may be specified therein, will have any legal effect.
8. Definitive Agreements. Each party understands and agrees that no contract or
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agreement providing for any Transaction involving the parties shall be deemed to
exist between the parties unless and until a final definitive agreement has been
executed and delivered. Each party also agrees that unless and until a final
definitive agreement regarding the Transaction between the parties has been
executed and delivered, neither party will be under any legal obligation of any
kind whatsoever with respect to such transaction by virtue of this Agreement
except 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. Both parties further
acknowledge and agree that each party reserves the right, in its sole
discretion, to provide or not provide Evaluation Material to the receiving party
under this Agreement, to reject any and all proposals made by the other party or
any of its
Representatives with regard to the Transaction between the parties, and to
terminate discussions and negotiations at any time.
9. Miscellaneous. Each party agrees to be responsible for any breach of this
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Agreement by any of its Representatives. No failure or delay by the Company or
any of its Representatives in exercising any right, power or privilege under
this agreement shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege hereunder. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions of the Agreement shall not in any way be affected or
impaired thereby.
10. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California applicable to agreements
made and to be performed within such state.
ORACLE CORPORATION
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Executive VP of Corporate Development
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COMPANY
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
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Title: Chairman and CEO
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Name of Representative,
Acting as the representative of the Company (if applicable)
By:
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Name:
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Title:
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