EXHIBIT (D)(2)
MUTUAL CONFIDENTIALITY
AND NONDISCLOSURE AGREEMENT
THIS AGREEMENT is made and entered into this 14th day of August, 2002, by
and between SYNAVANT Inc., a Delaware corporation ("SYNAVANT") and Dendrite
International, Inc., a New Jersey corporation (the "Company")
WITNESSETH:
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 in 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 "Representative" 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. Unless and until the parties
have consummated a relationship pursuant to a definitive written agreement (a
"Definitive Agreement"), all Evaluation Material of the disclosing party will be
kept confidential by the receiving party and its Representatives. 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 or other improper use of Evaluation
Material 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 or otherwise.
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 requested 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 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 Disclosures. 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 in 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 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 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.
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 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.
Notwithstanding the return or destruction of any Evaluation Material, the
parties will continue to be bound by their confidentiality and other obligations
under agreement.
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 President or Chief Executive Officer of such party 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 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 hereto at any time, and that each party's
obligations under this agreement will survive any such
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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 agreement or any other written or oral expression
with respect to such transaction except, in the case of this 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 written or verbal
agreement in principle or acceptance of an offer or bid, except in the extent
therein otherwise provided.
7. Standstill. Until the expiration of one (1) year 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 at Directors
or policies of the other party; or (f) publicly disclose any intention, plan or
arrangement inconsistent with the foregoing (collectively, the "Prohibited
Actions"), provided that, if any third party shall take or propose to take any
Prohibited Action with respect to a party hereto, the provisions of this
paragraph 7 shall thereafter no longer be applied to the other party, its
Affiliates or Representatives and each other party (and its Affiliates and
Representatives) shall thereafter be free to take any Prohibited Action.
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 United States
securities laws prohibit any person who has received material, nonpublic
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 forseeable that such
person is likely to purchase or sell such securities or otherwise to violate
such securities laws.
9. Nonsolicitation of Employees. Both parties agree that neither will
directly or indirectly, on its own behalf or in the service or on behalf of
others, solicit, divert or hire for work in any competing business or attempt to
solicit, divert or hire for work in any competing business any person or persons
employed by the other, whether or not such employment is pursuant to a written
contract with the other party or is for a determined period or at will, until
such employee has ceased his employment with the other party for at least six
(6) months provided however, a party shall not be prohibited from employing any
such person with whom the party has had communications regarding employment as
of the date first mentioned above.
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.
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 is for the
benefit of the parties and their directors, officers, stockholders, owners,
affiliates, and agents. This agreement will be governed by and construed in
accordance with the laws of the State of Georgia, 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 Georgia Trade Secrets Act or similar
applicable state or federal law. This agreement constitutes the entire agreement
between the parties respecting the subject matter hereof and supersedes all
prior or contemporaneous agreements, written or oral. Every provision of this
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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. This agreement may not be
modified or amended except in writing by a duly authorized representative of
each party.
IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals
as of the date first above written.
SYNAVANT INC:
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Sr. Vice President, Secretary & General Counsel
DENDRITE INTERNATIONAL, INC:
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
----------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Vice President, General Counsel and Secretary
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