EXHIBIT 99.(d)(12)
CONFIDENTIALITY AGREEMENT
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THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is made as of this 8th
day of December, 1999 between PROVANTAGE HEALTH SERVICES, INC., a Delaware
corporation with its principal place of business at N19 W24130 Riverwood Drive,
Waukesha, Wisconsin 53188, ("ProVantage") and MERCK & CO., INC., and its
Affiliates with offices at One Merck Drive, Whitehouse Station, New Jersey
08889-0100 ("Company").
WHEREAS, Company has requested certain information about the business
activities of ProVantage in connection with the possibility of establishing a
business relationship between ProVantage and Company. This information is being
collected from ProVantage for the sole purpose of evaluation of such a
transaction (the "Permitted Use"). The information being requested may include,
without limitation, descriptions of ProVantage's strategic and business plans,
the identity of one or more other parties with whom ProVantage does business,
descriptions of non-public transaction structure proposals, descriptions of
ProVantage's business operations, descriptions or demonstrations of ProVantage's
products and services, financial performance figures, financial projections,
descriptions of ProVantage's computer systems and systems development,
distribution networks, strategies, operations, and billing and receivable
operations, software, technical systems and product development methodologies
and strategies, marketing and operational procedures and strategies, client
lists and other similar information. Any such information disclosed by
ProVantage to Company, whether provided before or after the date of this
Agreement, either orally or in writing, is hereinafter referred to as the
"Confidential Information"; and
WHEREAS, ProVantage has agreed to provide to Company, such Confidential
Information with respect to its current and future operations, but only upon the
terms and conditions set forth herein; and
WHEREAS, the parties wish to set forth in this Agreement their agreements
concerning the use and protection of the Confidential Information.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and promises set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
ProVantage and Company hereby agree that:
1. ACKNOWLEDGEMENT. The Confidential Information is proprietary to
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ProVantage. Any disclosure or unauthorized use thereof may cause irreparable
harm and loss to ProVantage.
2. USE OF THE CONFIDENTIAL INFORMATION.
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a. Company will hold all of the Confidential Information in strict
confidence, and except as expressly set forth herein, will not disclose such
Confidential Information to any third person(s) (which term as used in this
Agreement will be broadly interpreted to include without limitation any
corporation, company, group, partnership, agency, or individual).
b. Company shall: (i) use the Confidential Information only in
connection with the Permitted Use; (ii) disclose the Confidential Information
only to its officers, directors, employees and advisors who need to know the
Confidential Information to accomplish the Permitted Use; and (iii) safeguard
the Confidential Information with the same degree of care to avoid unauthorized
disclosure as Company uses to protect its own Confidential Information of a
similar nature; but in no case less than reasonable care. It is Company's
responsibility to ensure that any officers, directors, or employees to have
access to the Confidential Information will, prior to being provided with any or
all of the Confidential Information, agree to be bound by the terms of this
Agreement. Company shall not use the Confidential Information in any respect to
compete with ProVantage at any time or provide such Information to a third party
to compete with ProVantage.
c. Immediately after Company's use of the Confidential Information
for the Permitted Use, or earlier upon written request by ProVantage, Company
shall return to ProVantage all of the Confidential Information, together with
summaries of the Confidential Information or shall destroy such summaries;
provided, however, that the Company may retain one copy of all the Confidential
Information in its legal files in order to monitor compliance with this
Agreement.
d. ProVantage will use its best efforts to ensure the accuracy and
completeness of the Confidential Information, but ProVantage does not make and
will not be deemed to have made any warranty as to the accuracy or completeness
of any of the Confidential Information. ProVantage will not be liable for any
damages arising out of the use of the Confidential Information disclosed
hereunder.
e. Company will assume the liability for all damages, losses, costs,
or expenses which result from (i) the use of the Confidential Information by
Company for any purpose other than the Permitted Use; (ii) disclosure of the
Confidential Information by Company to third parties or entities; or (iii) the
use of the Confidential Information by any person or entity other than Company,
caused by the unauthorized disclosure or dissemination of same by any employees,
agents, or contractors of Company.
f. The foregoing obligations of Company will not apply to the extent
that the Confidential Information: (i) which, at the time of its disclosure, is
in the public domain
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or which, after disclosure, becomes part of the public domain by publication or
otherwise through no action or fault of Company; (ii) which Company can show was
in its possession at the time of disclosure and was not acquired, directly or
indirectly, from ProVantage; or (iii) which was received by Company from a third
party having a legal right to transmit the information.
g. Subject to Section 4 below, the foregoing obligations of Company
will not apply to the extent that Company is required by law to provide the
Confidential Information to a government agency or regulatory body.
h. Company acknowledges its responsibilities under the federal
securities law, including without limitation, Section 10(b) of the Securities
Exchange Act of 1934 and Rule 10b-5 thereunder, with respect to trading
ProVantage's securities while in possession of material non-public information.
3. COMMUNICATION WITH SHOPKO AND PROVANTAGE EMPLOYEES. Company agrees
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that unless specifically authorized to the contrary, all communications with
ProVantage shall be channeled only through designated ShopKo and ProVantage
associates at ShopKo and ProVantage's headquarters in Green Bay, Wisconsin.
4. LRGALLY COMPELLED INFORMATION. In the event that Company or anyone to
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whom it transmits any Confidential Information becomes legally compelled to
disclose any of the Confidential Information, Company will provide ProVantage
with prompt written notice before such Confidential Information is disclosed so
that ProVantage can seek a protective order or other appropriate remedy. In the
absence of a protective order obtained by ProVantage or ProVantage's failure to
quash the legal process requiring disclosure or other measure effectively
removing the legal compulsion, Company shall have no duty to resist the
production of Confidential Information and the production thereof shall not
constitute a breach of this Agreement.
5. REASONABLENESS; REMEDIES. Company acknowledges that these covenants
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are reasonable and necessary for the protection of the proprietary interests of
ProVantage and that irreparable injury will result to ProVantage and its
business if any provision of this Agreement is breached and agrees that if there
should be any breach or threatened breach thereof, ProVantage shall be entitled
to an ex parte injunction prohibiting such conduct, and in the event final
judgement is entered in favor of ProVantage, the Company will reimburse
ProVantage for all court costs and legal fees, including reasonable attorney's
fees, incurred in enforcing this Agreement or obtaining relief hereunder other
than in connection with ProVantage exercising its rights under Section 4 hereof.
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6. OTHER COMMITMENTS. Nothing contained in this Agreement or in any
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discussions undertaken or disclosures made pursuant hereto shall be deemed a
commitment by ProVantage to engage in any business relationship, contract or
future dealing with Company.
7. SOLICITATION OF EMPLOYEES. Company agrees that, without ProVantage's
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prior written consent, you will not for a period of two years from the date of
this Agreement directly or indirectly solicit for employment or employ any
person who is now employed by ProVantage or any of ProVantage's subsidiaries and
who the Company came in contact with as a result of your evaluation or otherwise
in connection with the Permitted Use; provided, however, that you shall not be
prohibited from employing any such person who contacts you on his or her own
initiative and without any direct solicitation by you.
8. MISCELLANEOUS.
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a. No patent, copyright, trademark or other proprietary right is
licensed, granted or otherwise transferred directly, or by implication, estoppel
or otherwise, by this Agreement or any disclosure hereunder, except for the
right to use such information in accordance with this Agreement. No warranties
of any kind are given with respect to the Confidential Information disclosed
under this Agreement of any use thereof, except as may be otherwise agreed to in
writing.
b. This Agreement shall be effective as of the date first written
above and shall continue for a period of 5 years.
c. This Agreement may not be assigned by either party without the
prior written consent of the other, except to any of its affiliates upon prior
written notice. No permitted assignment shall relieve a party of its obligations
hereunder with respect to Confidential Information disclosed to that party prior
to the assignment. Any assignment in violation of this Section shall be void.
This Agreement shall be binding upon the parties and their respective successors
and assigns.
d. If any provision of this Agreement shall be held invalid or
unenforceable, such provision shall be deemed deleted from this Agreement and
replaced by a valid and enforceable provision which so far as possible achieves
the parties' intent in agreeing to the original provision. The remaining
provisions of this Agreement shall continue in full force and effect.
e. Each party warrants that it has the authority to enter
into this Agreement and to lawfully make the disclosures contemplated hereunder.
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f. This Agreement represents the entire understanding between the
parties with respect to the subject matter hereof and supersedes all prior
communications, agreements and understandings relating hereto. The provisions of
this Agreement may not be modified, amended or waived, except by a written
instrument duly executed by both parties. This Agreement shall be governed in
all respects by the laws of the State of Wisconsin without regard for conflict
of laws principles.
g. The parties expressly agree that facsimile signatures are
binding on the parties.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first written above.
PROVANTAGE HEALTH SERVICES, INC.
a Delaware corporation
By:
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Name:
and Title:
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MERCK & CO., INC.
By: /s/ Barbara Yanni
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Name
and Title: Executive Director, Corporate Development
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