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HomeMy WebLinkAbout2012-300 Non-Disclosure Agrmt - Asante MASANTEo CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Confidentiality and Non-Disclosure Agreement (the "Agreement") is made as of this . day of December, 2012 by and among (1) Asante, an Oregon nonprofit, public benefit corporation ("Asante"), (2) Ashland Community Healthcare Services dba Ashland Community Hospital, an Oregon nonprofit, public benefit corporation ("ACH"), (3) Ashland Community Hospital Foundation, an Oregon nonprofit public benefit corporation ("ACH Foundation"), and (4) City of Ashland, an Oregon municipal corporation ("City"). Asante, ACH, ACH Foundation, and the City are sometimes referred to collectively as the Parties and individually as a Party. RECITALS: A. The Parties, prior to and in connection with entering into discussions with each other regarding their evaluations of possible business transactions between or among them ("Proposed Transactions"), desire to enter into this Agreement in order to protect the highly confidential nature of their discussions and evaluation of the Proposed Transactions. B. Asante on the one hand, and the City, ACH and ACH Foundation on the other hand are interested in discussing with each other Proposed Transactions. In connection with such discussions and/or in connection with the Proposed Transactions. each Party may or will be disclosing to the other Party certain Confidential Information, as defined in Section 1.1 below. NOW THEREFORE, in order to induce the Parties to enter into discussions between or among the Parties regarding the Proposed Transactions, and in order to induce the Parties to disclose such Confidential Information to each other pursuant to this Agreement, and for other consideration, the receipt of which is hereby acknowledged, the Parties agree as follows: AGREEMENT: 1. Definitions. As used in this Agreement, the following terms shall have the following meanings: 1.1 "Confidential Information" means the information disclosed in the course of the initial telephone, email, in-person or other contact between Asante and ACH, and/or between Asante and the City, and/or between or among Asante, ACH, the City, and/or ACH Foundation with respect to entering into discussions regarding the Proposed Transactions, and any and all information (whether in written, electronic or oral form) which the Disclosing Party or any of its Representatives furnished, furnishes, disclosed or discloses to a Receiving Party or during the course of their discussions from the date of the initial contact to the date of this Agreement and following the date of this Agreement, specifically including, without limitation, any and all general and specific information relating in any way to the Proposed Transactions, all financial statements, projections and records, all marketing and sales data, all methods of operations and business strategies, and all technical information, as well as any and all extracts, analyses, summaries, reviews, notes and other materials prepared by the Disclosing Page I - Confidentiality and Non-Disclosure Agreement PDXDOCS:1984791.3 MASANTE° Party for any Receiving Party or their Representatives that contain or are derived in any way from such information. The term "Confidential Information" shall include without limitation all documents shared between or among the Parties with respect to the Proposed Transactions between January 1, 2011 to the date of this Agreement, and from the date of this Agreement through the date of the consummation of the Proposed Transactions or through the date ACH and Asante agree in writing not to proceed with the Proposed Transactions. This Agreement shall survive the dates in the immediately preceding sentence. The Parties agree that Confidential Information, to the extent shared with the City or any public body, is exempt from disclosure as "trade secrets" pursuant to ORS 192.501(2) and as "information submitted in confidence" to a public body under ORS 192.502(4). For avoidance of doubt, any information disclosed by the Disclosing Party regarding any of the following: (i) Disclosing Party's business and its personnel (including its officers, directors, agents, employees, and contractors), patients, customers, clients, vendors, donors, suppliers, distributors, consultants, affiliated entities, and all others with whom it does business; (ii) information about care delivery models, patient volumes, provider relationships, quality, clinical and/or educational programs (iii) market information; (iv) compilations of technical, financial or other data; (v) contracting relationships including without limitation managed care contracting relationships, property acquisitions or developments; (vi) business plans; and (vii) budgets including, but not limited to, any or all of the foregoing that may be prepared by the Disclosing Party relating to the Proposed Transactions, shall be deemed to be Confidential Information. Notwithstanding the foregoing, the term "Confidential Information" shall not include any information that (a) is or becomes generally available to the public through no fault or omission of a Receiving Party, (b) becomes known to a Receiving Party or its Representatives without obligation of confidentiality prior to the disclosure of such information by the Disclosing Party or its Representatives, (c) becomes available to a Receiving Party or its Representatives from a Person (other than the Disclosing Party or its Representatives) who, to the knowledge of the Receiving Party or its Representatives after due inquiry, is not prohibited from disclosing such information by any legal, contractual or fiduciary obligation to the Disclosing Party or its Representatives, or (d) is any final transactional document submitted to the City for approval by vote of the City Council, except that the Parties may agree to redact trade secrets, or other proprietary or confidential information from any such final transactional document. 1.2 "Disclosing Party" means the Party on whose behalf the Confidential Information is furnished. 1.3 "Party" means the Disclosing Party or the Receiving Party. 1.4 "Parties" means the Disclosing Party and the Receiving Patty. 1.5 "Person" means any natural person, corporation, limited liability company, partnership, trust, organization, association, municipal corporation, independent public corporation, or other entity, including without limitation any government entity. Page 2 - Confidentiality and Non-Disclosure Agreement PDXDOCS:1984791.3 r MASANTE° 1.6 "Receiving Party" means any Party on whose behalf Confidential Information is received. 1.7 "Representative" means any of the respective employees, officers, directors, shareholders, members, managers, partners, affiliates (as such term is defined in Rule 405 of the Securities Act of 1933, as amended), consultants, legal counsel, accountants or other agents of the Disclosing Party or the Receiving Party, as the case may. be. 2. Covenants of the Parties with Respect to Confidential Information 2.1 Ownership; Return of Confidential Information. Each Receiving Party acknowledges that all Confidential Information is and shall continue to be the exclusive and permanent property of the Disclosing Party. Each Party agrees to receive the Confidential Information in absolute confidence. Promptly upon the written request of the Disclosing Party or any of its Representatives, a Receiving Party shall, and shall cause each of its Representatives to (a) return to the Disclosing Party all Confidential Information within their possession, including all copies thereof, (b) destroy all extracts, analyses, compilations, studies, summaries, reviews, notes and other materials prepared by Receiving Party or its Representatives that contain any Confidential Information, and (c) certify in writing such return and destruction to the Disclosing Party. Notwithstanding anything to the contrary in this Agreement, the City shall not be required to destroy any Confidential Information that is a public record under the Oregon Public Records Law during the period of time that the public record is required to be maintained under the records retention schedule prescribed by the Oregon Secretary of State's Office, Archives Division. 2.2 Covenant of Non-Disclosure; Required Disclosure. 2.2.1 Covenant of Non-Disclosure. No Receiving Party will, without first obtaining the Disclosing Party's prior written consent (except to the extent required by applicable law, regulation or court order, and then only after compliance with Section 2.2.2 hereof), reveal, communicate or disclose to any Person, directly or indirectly, under any circumstances or by any means any Confidential Information or the fact that such Confidential Information exists or has been made available to the Receiving Party or any of its Representatives, provided, however, a Receiving Party may disclose such matters to those of its Representatives (a) who need to review such Confidential Information for the limited purpose of assisting Receiving Party in evaluating the Proposed Transaction, (b) whom such Receiving Party has advised of the confidential nature of the Confidential Information and the terms and conditions of this Agreement, and (c) who agree to be bound by and comply with all terms and conditions of this Agreement as if they were a Receiving Party hereunder. Each Receiving Party shall be liable for any breach of this Agreement by that Receiving Party's Representatives. 2.2.2 Required Disclosure. If a Receiving Party or any of its Representatives is required by applicable law, regulation, or legal process to disclose any Confidential Information, Receiving Party will, prior to such disclosure, promptly notify the Disclosing Party in writing to enable the Disclosing Party to seek a protective order or Page 3 - Confidentiality and Non-Disclosure Agreement PDXDOCS:1984791.3 MASANTEm other appropriate remedy, and, if the Receiving Party is Asante, ACH, or the ACH Foundation, will provide reasonable assistance, as requested, to the Disclosing Party in obtaining such protective order or other appropriate remedy, provided that any costs or expenses incurred in connection with such protective order shall be the sole responsibility of the Disclosing Party. In each instance where the Disclosing Party cannot obtain a protective order or other appropriate remedy, the Receiving Party will furnish, and will cause its Representatives to furnish, only that portion of the Confidential Information that the Receiving Party and/or its Representatives are required to disclose, and, to the extent reasonably practicable, the Receiving Party and its representatives shall obtain reliable assurance that the Confidential Information so disclosed will receive confidential treatment. 2.3 Covenant of Non-Use. Each Receiving Party agrees that it will use the Confidential Information solely for the purpose of evaluating the Proposed Transactions, and no Receiving Party will use the Confidential Information for any other purpose whatsoever. 2.4 Safeguard of Confidential Information. Each Receiving Party agrees to take the same precautions to safeguard the confidentiality of the Confidential Information that it takes with respect to its own non-public and highly confidential proprietary data or information, to cause its Representatives to comply with this Agreement in all respects, and to be liable to the Disclosing Party for any failure by any of its Representatives to so comply. 2.5 Public Disclosure of Potential Collaboration. No Party shall make a public announcement or a press release regarding the Proposed Transactions without first obtaining the consent of Asante, ACH, and the City as to the timing, manner and substance of such announcement or press release. The Parties intend to cooperate and coordinate efforts to determine the timing and substance of all formal public announcements or press releases regarding the Proposed Transaction. Notwithstanding the foregoing, however, the City may provide public notice required by law about upcoming public meetings concerning the Proposed Transactions. 2.6 Exception. 2.6.1 City Disclosure/Public Records Law Demand. The Parties acknowledge that as a municipal corporation, the City is subject to the Oregon Public Records Law, ORS 192.410 to 192.505. The Parties, however, also acknowledge that the Confidential Information is likely exempt from disclosure under such Law. In the event the City receives from a third person or entity any request under the Oregon Public Records Law for the disclosure of the Confidential Information of a Party, the City shall promptly notify the Disclosing Party or Parties as the case may be of the request, so that the Disclosing Party or Parties have a reasonable opportunity to prevent disclosure of the Confidential Information. The Disclosing Party or Parties are exclusively responsible for defending its or their position concerning the confidentiality of the requested information. The City may, but is not required to assist the other Party or Parties in opposing disclosure of the Confidential Information. Page 4 - Confidentiality and Non-Disclosure Agreement PDXDOCS:1984791.3 s MASANTEG 3. Acknowledgment of Irreparable Harm. Each Receiving Party acknowledges that the Confidential Information it obtains during the course of its evaluation is special and unique to the Disclosing Party and that any breach of the terms and conditions of this Agreement may result in irreparable and continuing harm to the Disclosing Party for which there will be no adequate remedy at law. Accordingly, each Receiving Party recognizes and agrees that remedies at law may be inadequate to protect the Disclosing Party against any actual or threatened breach of this Agreement by the Receiving Party or any of its Representatives. Therefore, without prejudicing any rights or remedies that may otherwise be available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific performance of this Agreement, including immediate issuance of a temporary restraining order and/or preliminary or permanent injunctive relief, in connection with any breach or threatened breach of this Agreement. Such equitable relief shall not be deemed the exclusive remedy for any breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to the Disclosing Party. If the Disclosing Party brings an action against a Receiving Party to enforce its rights under this Agreement, the prevailing party in such action shall be reimbursed by the other party for all costs and expenses, including reasonable attorney fees, incurred in connection therewith at trial and on appeal and any review. 4. Indemnification. Each Receiving Party, for itself and on behalf of each of its Representatives, agrees to defend, indemnify and hold harmless the Disclosing Party and each of the Disclosing Party's Representatives from and against any and all claims, damages, losses, liabilities, and reasonable costs and out-of-pocket expenses whatsoever that the Disclosing Party and/or its Representatives may incur (or which may be claimed against the Disclosing Party and/or its Representatives) resulting from a breach of this Agreement by that Receiving Party and/or its Representatives. 5. No Legal Obligations By Virtue of Discussions. Each Receiving Party and the Disclosing Party acknowledge and agree that neither the Disclosing Party nor any Receiving Party is under any legal obligation, by virtue of this Agreement, to enter into negotiations regarding or to consummate the Proposed Transactions. Nothing contained in this Agreement shall compel a Party to furnish information to any other Party. 6. Exclusive Negotiations. ACH and the City agree that for the longer of 120 days from the date of this Agreement or so long as the Parties are discussing or considering the Proposed Transactions, they will not enter into discussions or negotiations with any person or entity, other than Asante, to discuss, explore or consummate a transaction which would result in a transfer of membership or ownership interests or substantially all of ACH's assets to, or a merger with, or an affiliation with, another person or entity. 7. Miscellaneous. 7.1 Remedies Cumulative. All remedies (whether under this Agreement, at law or in equity) available to the Disclosing Party for any breach or threatened breach of this Agreement are cumulative and may be exercised separately or concurrently. No failure or delay by the Disclosing Party in exercising any right, power, or privilege hereunder shall operate as a Page 5 - Confidentiality and Non-Disclosure Agreement PDXDOCS:1984791.3 MASANTE~ waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder. 7.2 Incorporation of Recitals. The Recitals to this Agreement are incorporated herein by this reference and made a binding part hereof. 7.3 No Assignment. No Receiving Party may assign any of its rights or delegate any of its duties under this Agreement, by operation of law or otherwise, without the Disclosing Party's prior written consent, which consent the Disclosing Party may be withhold in its sole discretion. Any attempted assignment in violation of this Agreement shall be void and of no legal force or effect. 7.4 Entire Agreement. This Agreement is the entire, final and complete Agreement and understanding of the parties with respect to the transactions contemplated hereby, and supersedes and replaces all written and oral agreements and understandings heretofore made or existing by and between the Parties or their Representatives with respect thereto. 7.5 Waiver. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. 7.6 Binding Effect. All rights, remedies and liabilities herein given to or imposed upon the Parties shall extend to, inure to the benefit of and bind, as the circumstances may require, the Parties and their respective successors and permitted assigns. 7.7 Notices. Any notice'or other communication required or permitted under this Agreement shall be in writing and shall be deemed given on the date of transmission when sent by telex or facsimile transmission, on the third business day after the day of mailing when mailed by certified mail, postage prepaid, return receipt requested, from within the United States, or on the date of actual delivery, whichever is the earliest, and shall be sent to the parties at the following addresses, or at such other address as the party may hereafter designate by written notice to the other: To Asante: To ACH: Roy Vinyard, President/CEO Mark Marchetti, President/CEO Asante Ashland Community Hospital 2650 Siskiyou Blvd. 280 Maple Street Medford, OR 97504 Ashland, OR 97520 To ACH Foundation: To the City: Tom Grimland, President Dave Kanner, City Administrator Ashland Community Hospital Foundation City of Ashland 280 Maple Street 20 East Main Street Ashland, OR 97520 Ashland, OR 97520 Page 6 - Confidentiality and Non-Disclosure Agreement PDXDOCS:1984791.3 ITIASANTE° 7.8 Governing Law and Venue. This Agreement and the rights of the parties hereunder shall be governed, construed and enforced in accordance with the laws of Oregon, without regard to its conflict of laws principles. Any suit or action arising out of or in connection with this Agreement or any breach hereof shall be adjudicated in the federal or state courts sitting in Jackson County, Oregon. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts for the purpose of any such suit or action and hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection it may now or hereafter have to the venue of any such suit or action in any such court and any claim that any such suit or action has been brought in an inconvenient forum. 7.9 Amendment. No supplement, modification or amendment of this Agreement shall be valid unless the same is in writing and signed by all Parties hereto. 7.10 Severability. In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected or invalidated thereby. 7.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. 7.12 Time Essence. Time is of the essence in the performance of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. Asante, an Oregon nonprofit, public benefit corporation Date: f 2 A 01112 By: "ASANTE" Roy Vin and Title: President/CEO Ashland Community Healthcare Services, An Oreg n nonprofit, public benefit corporation Date: l 2 - 20 - l +-11, "ACH" By: (LAO Mark Marchetti Title: President/CEO Page 7- Confidentiality and Non-Disclosure Agreement PDXDOCS:1984791.3 MASANTE° Ashland Community Hospital Foundation, an Oregon nonprofit, public benefit corporation Date: ( 2 1 By "ACH FOUNDATION" Tom Grimland Title: President City of Ashland, an Oregon municipal corporation Date: By: "CITY" BvrTK= r 4e-e- U Title: City Administrator - Allljl~ APP VE A T RM Sig a re Date Page 8 - Confidentiality and Non-Disclosure Agreement PDXDOC5:1984791.3