EXHIBIT (c)(5)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Confidentiality and Non-disclosure Agreement (the "Agreement") is
made and entered into effective as of this 13th day of October, 1995, by and
between PSICOR, INC., a Pennsylvania corporation (the "Company"), and ▇▇▇▇▇▇
HEALTHCARE CORPORATION, a Delaware corporation ("Recipient"). In consideration
of the mutual covenants and conditions contained herein, to induce the Company
to provide certain information to Recipient and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties to this Agreement do hereby agree as follows:
1. DEFINITION OF CONFIDENTIAL INFORMATION. For all purposes of this
Agreement, the term "Confidential Information" shall collectively refer to all
information or material disclosed or provided by the Company to Recipient,
either orally or in writing, or obtained by Recipient from a third party or any
other source at the Company's direction, concerning any aspect of the business
or affairs of the Company or its "affiliates" (as such term is defined in Rule
12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), including without limitation, any information or material pertaining to
products, formulae, specifications, designs, processes, plans, policies,
procedures, employees, work conditions, legal and regulatory affairs, assets,
inventory, discoveries, trademarks, patents, manufacturing, packing,
distribution, sales, marketing, expenses, financial statements and data,
customer and supplier lists, raw materials, costs of goods and relationships
with third parties. Confidential Information also includes any notes, analyses,
compilations, studies or other material or documents prepared by Recipient which
contain, reflect or are based, in whole or in part, on the Confidential
Information.
Notwithstanding the foregoing, Confidential Information shall not include
information or material that (i) is publicly available or becomes publicly
available through no action or fault of Recipient, (ii) was already in
Recipient's possession or known to Recipient prior to being disclosed or
provided to Recipient by or on behalf of the Company, PROVIDED, that, to the
Recipient's knowledge, after reasonable inquiry, the source of such information
or material was not bound by a contractual, legal or fiduciary obligation of
confidentiality to the Company or any other party with respect thereto, or (iii)
was or is obtained by Recipient from a third party, PROVIDED, that to the
Recipient's knowledge, after reasonable inquiry, such third party was not bound
by a contractual, legal or fiduciary obligation of confidentiality to the
Company or any other party with respect to such information or material.
2. RESTRICTIONS ON DISCLOSURE AND USE. Recipient does hereby covenant and
agree with the Company as follows:
2.1 NON-DISCLOSURE. Recipient shall keep confidential and shall not
disclose, or cause or permit to be disclosed, to any person or entity, (i) any
information about a potential acquisition of or merger with the Company (the
"Transaction") or the fact that Recipient has received the Confidential
Information and is considering the Transaction and all discussions between the
Company and Recipient related thereto, except the Recipient may make such
disclosure if it has been advised by its outside counsel that such disclosure
must be made in order that Recipient not commit a violation of law and if
Recipient provides the Company, prior to making such disclosure, with notice of
the decision to make such disclosure, and (ii) the Confidential Information,
except, in either case, to those officers, employees or other authorized agents
and representatives of Recipient to whom disclosure is reasonably necessary in
Recipient's judgment in connection with the Transaction and who shall agree to
be bound by the terms of this Agreement, and except as otherwise consented to in
writing by the Company. Recipient shall take all actions reasonably necessary
to ensure that the Confidential Information remains strictly confidential and is
not disclosed to or seen, used or obtained by any person or entity except in
accordance with the terms of this Agreement. Recipient agrees not to contact
any employees not specifically designated by the Company, customers or suppliers
of the Company or its affiliates with respect to the Transaction or for the
purpose of obtaining information for use in evaluating the Transaction, without
the Company's prior written consent. Recipient further agrees that all
inquiries, requests for information and other communications concerning the
Transaction shall be made only to the employees designated by the Company or
through ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated, the advisor to the Company, unless and until
another contact person is identified to Recipient in writing by the Company.
In the event that Recipient is requested or required (by oral questions,
interrogatories, request for information or documents in legal proceedings,
subpoena, civil investigative demand or other similar process) to disclose any
of the Confidential Information, Recipient shall provide the Company with prompt
written notice of any such request or requirement so that the Company 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 the Company, Recipient is nonetheless,
based on advice of its outside counsel, legally compelled to disclose
Confidential Information to any tribunal or else stand liable to contempt or
suffer other
2
censure or penalty, Recipient may, without liability hereunder, disclose to such
tribunal only that portion of the Confidential Information which such counsel
advises Recipient is legally required to be disclosed, provided that Recipient
shall use its reasonable efforts to preserve the confidentiality of the
Confidential Information, including, without limitation, by cooperating with the
Company to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be afforded the Confidential Information by
such tribunal.
2.2 OWNERSHIP. The Confidential Information is owned solely and
exclusively by the Company, shall remain the exclusive property of the Company
unless transferred to Recipient in the Transaction, and Recipient shall have no
right, title or interest in or to any of the Confidential Information or any
material developed therefrom.
2.3 USE. Recipient shall use or cause the Confidential Information to
be used only to evaluate the Transaction and in a manner consistent with the
terms and conditions of this Agreement and at no time shall Recipient otherwise
use the Confidential Information for the benefit of itself or any other third
party or in any manner adverse to, or to the detriment of, the Company or its
affiliates or their respective shareholders, other than in connection with the
registration or completion of a Transaction.
2.4 OTHER PARTIES BOUND. All affiliates of Recipient and all
directors, officers, employees, agents and representatives of Recipient or its
affiliates shall be included within the definition of the term "Recipient" for
purposes of this Agreement and shall be bound by the terms and conditions of
this Agreement. Recipient shall be responsible for any breaches of this
Agreement by any of its affiliates and any directors, officers, employees,
agents and representatives of Recipient or its affiliates.
3. NO SOLICITATION OR HIRING OF EMPLOYEES. For a period of one year from
the date of this Agreement, Recipient and its affiliates will not knowingly
solicit the employment of, or offer employment to, any officer of the Company or
its affiliates without the Company's prior written consent.
4. RETURN OF CONFIDENTIAL INFORMATION. Recipient shall, upon accomplishing
the limited purpose of evaluating the Transaction, or at any time upon the
request of the Company, (a) immediately return to the Company all Confidential
Information (including notes, writing and other materials developed therefrom by
Recipient) and all copies thereof and retain none for its files, or (b) destroy
all Confi-
3
dential Information, originals and copies, and provide an affidavit
verifying such destruction. Notwithstanding such return or destruction,
Recipient shall continue to be bound by this Agreement.
5. NO REPRESENTATIONS OR WARRANTIES. The Confidential Information is being
provided to Recipient "as is" and without any representation or warranty of any
kind, either express or implied, regarding the accuracy or completeness or other
quality of the Confidential Information. In no event shall the Company or its
affiliates or any of their respective directors, officers, employees, agents or
representatives (including, without limitation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated) have
any liability to Recipient relating to or arising out of any use of the
Confidential Information, except as may be provided in a definitive agreement in
connection with the Transaction.
6. EQUITABLE REMEDIES. Recipient hereby agrees that its failure to perform
any obligation or duty which it has agreed to perform under this Agreement will
cause irreparable harm to the Company, which harm cannot be adequately
compensated for by money damages. It is further agreed by Recipient that an
order of specific performance or for injunctive relief against Recipient in the
event of a breach or default under the terms of this Agreement would be
equitable and would not work a hardship on Recipient. Accordingly, in the event
of a breach or default by Recipient hereunder, the Company, in addition to
whatever other remedies are or might be available at law or in equity, shall
have the right either to compel specific performance by, or to obtain injunctive
relief against, Recipient, with respect to any obligation or duty herein or
breach thereof.
7. NO LICENSES GRANTED. The Company grants no licenses, by implication or
otherwise, under any patent, copyright, trademark, trade secret or other rights
by disclosing Confidential Information under this Agreement.
8. DEFINITIVE AGREEMENT. Except for the terms and conditions of this
Agreement, Recipient and the Company each understand and agree that no contract
or agreement providing for any transaction involving the Company shall be deemed
to exist between Recipient and the Company unless and until a final definitive
agreement has been executed and delivered, and Recipient and the Company each
hereby waive in advance, any claims (including, without limitation, breach of
contract) in connection with any transaction involving the Company unless and
until Recipient and the Company shall have entered into a final definitive
agreement. Recipient and the Company each also agree that unless and until a
final definitive agreement between Recipient and the Company has been executed
and
4
delivered, neither Recipient nor the Company will be under any legal obligation
of any kind whatsoever with respect to such a transaction by virtue of this
Agreement except for the matters specifically agreed to herein. The Company
reserves the right, in its sole discretion, to reject any and all proposals made
by Recipient and to terminate discussions and negotiations with Recipient at any
time. Recipient further understands that, except as otherwise agreed to in
writing, (i) the Company shall be free to conduct any process for any
transaction involving the Company, if and as the Company in its sole discretion
shall determine (including, without limitation, negotiating with any other
interested party and entering into a definitive agreement without prior notice
to Recipient or any other person), (ii) any procedures relating to such process
or transaction may be changed at any time in the Company's sole discretion
without notice to Recipient or any other person, and (iii) Recipient shall not
have any claims whatsoever against the Company or any of its agents or
representatives (including, without limitation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated)
arising out of or relating to any transaction involving the Company (other than
any claims against the parties to a definitive agreement with Recipient in
accordance with the terms thereof) nor, unless a definitive agreement is entered
into with Recipient, against any third party with whom a transaction is entered
into.
9. STANDSTILL.
9.1 Recipient hereby convenants and agrees that, until twelve months
from the date of this Agreement, without the prior written consent of the
Company, Recipient will not in any manner, directly or indirectly, or in
connection with any other person or entity, (a) effect or seek, offer or propose
(whether publicly or otherwise) to effect or participate in, (i) any acquisition
of any securities (or beneficial ownership thereof) or assets of the Company,
(ii) any tender or exchange offer, merger or other business combination
involving the Company, (iii) any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with respect to the Company, or
(iv) any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1
under the Exchange Act) or consents to vote any securities of the Company; (b)
form, join or in any way participate in a "group" (as such term is used in
Section 13(d)(3) of the Exchange Act) or otherwise act, alone or with others, to
seek to acquire or affect control or influence the management, Board of
Directors or policies of the Company; or (c) enter into any discussions or
arrangements with any third party other than the Company, its representatives,
or advisors to the Recipient regarding any of the foregoing.
5
9.2 Notwithstanding paragraph 9.1 above, Recipient shall not be
prohibited from proposing to the Company's Board of Directors a cash transaction
structured as a tender offer followed by a merger in which all holders of the
Company's Common Stock (including outstanding options to acquire shares of the
Company's Common Stock, whether vested and exercisable or not) will receive cash
consideration of not less than $17.50, net, per share of the Company's Common
Stock.
10. TRADING IN SECURITIES. Recipient acknowledges that it is aware, and
agrees to advise its directors, officers, employees, agents and representatives
who are informed as to the matters which are the subject of this Agreement, that
the United States securities laws prohibit any person who has material,
non-public information concerning the Transaction from purchasing or selling
securities of a company that may be party to such Transaction 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.
11. MISCELLANEOUS. This Agreement shall be binding upon, and inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns, but this Agreement shall not be assignable by Recipient
without the prior written consent of the Company. This Agreement constitutes
the complete agreement between the parties hereto with respect to the subject
matter hereof and shall continue in full force and effect until terminated by
mutual agreement of the parties hereto. This Agreement specifically revokes and
supersedes the Mutual Confidentiality Agreement entered into between the Company
and ▇▇▇▇▇▇ Healthcare Corporation dated April 21, 1994. The section headings
used herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement. This Agreement shall be construed,
performed and enforced in accordance with, and governed by, the internal laws of
the State of California, without giving effect to the principles of conflicts of
law thereof, and each party consents to personal jurisdiction in such state and
voluntarily submits to the jurisdiction of the courts of such state in any
action or proceeding relating to this Agreement. Whenever possible, each
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision hereof is held to
be invalid, illegal or unenforceable under any applicable law or rule in any
jurisdiction, such provision will be ineffective only to the extent of such
invalidity, illegality, or unenforceability, without invalidating the remainder
of this Agreement. This Agreement may not be modified or amended and no
provision hereof may be waived, in whole or in part, except by a written
agreement signed by the
6
parties hereto. No waiver of any breach of default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument.
12. TERM. Except as otherwise specifically provided herein, the provisions
of this Agreement shall terminate and be of no further force or effect two years
from the date first written above.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of the date first set forth above.
The Company The Recipient
PSICOR, INC. ▇▇▇▇▇▇ HEALTHCARE
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- ----------------------------
Its: General Counsel Its: Vice President, Law
-------------------------- ---------------------------
7