Exhibit 99(d)(4)
THE DEWOLFE COMPANIES, INC.
80 HAYDEN AVENUE
LEXINGTON, MASSACHUSETTS 02421
June 14, 2002
NRT Incorporated
339 Jefferson Road
Parsippany, NJ 07054
Attn: Thomas J. Freeman, Senior Vice President
Ladies and Gentlemen:
In order to facilitate the consideration of and discussions and
possible negotiations regarding a potential transaction (a "Transaction")
between NRT Incorporated ("NRT") and The DeWolfe Companies, Inc. (the
"Company"), NRT desires, and the Company is agreeable to providing NRT with,
access to certain financial and other information regarding the business and
affairs of the Company. This letter agreement sets forth the Company's and NRT's
respective rights and obligations regarding the use and disclosure of such
information and various related matters.
The Company and NRT, each intending to be legally bound for and in
consideration of the mutual promises contained herein and other good and
valuable consideration the receipt and sufficiency of which are hereby mutually
acknowledged, acknowledge and agree as follows:
1. CONFIDENTIAL INFORMATION. For purposes of this letter agreement,
"Confidential Information" will be deemed to include:
(a) any information, in whatever form, relating directly or indirectly
to the business of the Company, any predecessor entity or any subsidiary or
other affiliate of the Company, whether prepared by the Company or by any other
person, that is, has been or will be made available to NRT, or to any director,
officer, employee, affiliate (including, without limitation, any parent
company), agent, advisor or representative (each, a "Related Party") of NRT by
or on behalf of the Company or any Related Party of the Company;
(b) any memorandum, analysis, compilation, summary, interpretation,
study, report or other document, record or material that is, has been or will be
prepared by or for NRT or any Related Party of NRT and that contains, reflects,
interprets or is based directly or indirectly upon any information of the type
referred to in subsection (a) of this sentence;
(c) the existence and terms of this letter agreement, and the fact that
information of the type referred to in subsection (a) of this sentence has been
made available to NRT or any Related Party of NRT; and
(d) the fact that discussions or negotiations are or may be taking
place with respect to a possible Transaction involving NRT and the Company, the
content of any such discussions or negotiations, and the proposed terms of any
such Transaction;
provided, however, that "Confidential Information" will not be deemed to
include:
(i) any information that is or becomes generally available to
the public other than as a direct or indirect result of the disclosure
of any of such information by NRT or by any Related Party of NRT;
(ii) any information that was in NRT's possession prior to the
time it was first made available to NRT or any Related Party of NRT by
or on behalf of the Company or any Related Party of the Company,
provided that, to the knowledge of NRT, the source of such information
was not at the time such information was made available bound by any
contractual or other obligation of confidentiality to the Company or
any other person with respect to any of such information; or
(iii) any information that becomes available to NRT from a
source other than the Company or any Related Party of the Company,
provided that, to the knowledge of NRT, such source was not at the time
such information was made available bound by any contractual or other
obligation of confidentiality to the Company or any other person with
respect to any of such information.
Confidential Information shall include, without limitation, any
information within the foregoing definition (subject to the foregoing
exceptions) provided by or on behalf of the Company to NRT prior to the date
hereof.
2. LIMITATIONS ON USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) NRT agrees that (x) it will not use the Confidential Information
for any purpose other than determining whether NRT wishes to enter into a
Transaction with the Company and (y) except in connection with the permitted use
set forth in the foregoing clause (x), it will not use the Confidential
Information in any way directly harmful to the Company. Except as required by
law, rule, regulation or legal process (and subject to compliance with Section
2(d) hereof), NRT agrees not to disclose or allow disclosure to others of any
Confidential Information, in any manner whatsoever, in whole or in part, without
the prior written consent of the Company. Except as required by law, rule,
regulation or legal process (and subject to compliance with Section 2(d)
hereof), NRT shall take all reasonable precautions to prevent the unauthorized
use or disclosure of the Confidential Information. Notwithstanding the
foregoing, NRT may disclose Confidential Information to any Related Party of
NRT, to the extent necessary to permit such Related Party to assist NRT in
evaluating a potential Transaction; provided, however, that (x) NRT shall be
responsible for any breach of this letter agreement by any Related Party of NRT
and (y) with respect to NRT's subsidiary Hunneman Real Estate Corporation
("Hunneman"), Confidential Information shall only be disclosed to senior
management personnel.
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(b) NRT agrees that, until the earlier of (i) the consummation of a
Transaction between the Company and NRT or (ii) June 30, 2003, neither NRT nor
any of its Related Parties (other than Hunneman or Hunneman's subsidiaries and
any other acquired real estate brokerages in the New England region) shall
solicit to employ or engage any employees and independent contractors of the
Company through a solicitation campaign or program that is intended to
specifically target such employees and independent contractors of the Company.
It is understood and agreed that nothing in this Section 2(b) shall be deemed to
prohibit or restrict the ordinary course solicitation, hiring or recruitment
efforts of Hunneman, or any other real estate brokerage acquired by Hunneman or
NRT or its Related Parties, in the New England region.
(c) The Company hereby agrees that it and all of its Related Parties
will keep confidential the Confidential Information set forth in Section 1(c)
and (d) during the term of this letter agreement.
(d) In the event that NRT or the Company, or any of their respective
Related Parties, is required by any law, rule, regulation or legal process to
disclose any Confidential Information as to which such party has a
confidentiality obligation to the other party under this Section 2, such party
shall give the other party prompt written notice of such request or requirement
so that the other party may seek an appropriate protective order or other remedy
and/or waive compliance with the provisions of this letter agreement, and such
party shall reasonably cooperate (at the other party's expense) with the other
party to obtain such protective order. In the event that such protective order
or other remedy is not obtained or the other party waives compliance with the
relevant provisions of this letter agreement, such party shall furnish only that
portion of such Confidential Information which, such party has determined in
good faith after consultation with such party's counsel, is legally required to
be disclosed and will use such party's reasonable best efforts to assure that
confidential treatment will be accorded to such information.
3. COMPANY CONTACT. Any request by NRT or any Related Party of NRT to
review Confidential Information must be directed to the Company's President and
Chief Operating Officer (the "Company Contact") or to any person designated by
the Company Contact. Neither NRT nor any Related Party of NRT will contact or
otherwise communicate with any other person related to the Company in any way
related to a possible Transaction without the prior written authorization of the
Company Contact.
4. NO REPRESENTATIONS BY THE COMPANY. Neither the Company nor any
Related Party of the Company will be under any obligation to make any particular
Confidential Information available to NRT or any Related Party of NRT or to
supplement or update any Confidential Information previously furnished. Neither
the Company nor any Related Party of the Company has made or is making any
representation or warranty, express or implied, as to the accuracy or
completeness of any Confidential Information, and neither the Company nor any
Related Party of the Company will have any liability to NRT or to any Related
Party of NRT relating to or resulting from the use of any Confidential
Information or any inaccuracies or errors therein or omissions therefrom. Only
those representations and warranties (if any) that are included in any final
definitive written agreement that provides for the consummation of a negotiated
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Transaction between NRT and the Company and is validly executed on behalf of and
delivered by NRT and the Company (a "Definitive Agreement") will have legal
effect.
5. ACKNOWLEDGEMENT OF SECURITIES LAWS. NRT acknowledges and agrees, and
will advise all Related Parties of NRT who receive Confidential Information,
that (i) the United States securities laws prohibit any person who has received
from an issuer material, non-public information from purchasing or selling
securities of such issuer 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 securities, and (ii) NRT is familiar with
the Exchange Act and the rules and regulations promulgated thereunder and NRT
will not use nor cause any party to use any Confidential Information in
contravention of the Exchange Act or such rules and regulations including, but
not limited to, Rules 10b-5 and 14e-3.
6. RETURN OF CONFIDENTIAL INFORMATION. If the parties have not entered
into a Definitive Agreement by July 31, 2002, or if, at any time, the Company
requests, NRT and all Related Parties of NRT will promptly deliver to the
Company any Confidential Information (and all copies thereof) obtained or
possessed by NRT or any Related Party of NRT; provided, however, that, in lieu
of delivering to the Company any written materials of the type described in
clause "(b)" of the definition of Confidential Information, NRT may destroy such
written materials. Notwithstanding the delivery to the Company (or the
destruction by NRT) of Confidential Information pursuant to this Section 6, NRT
and its Related Parties will continue to be bound by their confidentiality
obligations and other obligations under this letter agreement.
7. NO OBLIGATION TO PURSUE TRANSACTION. Unless NRT and the Company
enter into a Definitive Agreement, no agreement providing for a Transaction will
be deemed to exist between them, or the Related Parties of either of them, and
neither the Company nor NRT will be under any obligation, legal or otherwise, to
negotiate or enter into any such agreement or Transaction. The Company reserves
the right, in its sole discretion: (a) to conduct any process it deems
appropriate with respect to any transaction or proposed transaction involving
the Company, and to modify any procedures relating to any such process without
giving notice to NRT or any other Person; (b) to reject any proposal made by NRT
or any Related Party of NRT with respect to a Transaction involving the Company;
and (c) to terminate discussions and negotiations with NRT at any time. NRT
recognizes that, except as expressly provided in any Definitive Agreement
between NRT and the Company: (i) the Company and any Related Party of the
Company will be free to negotiate with, and to enter into any agreement or
transaction with, any other interested party; and (ii) NRT will not have any
rights or claims against the Company or any Related Party of the Company or its
stockholders arising out of or relating to any Transaction or proposed
Transaction involving the Company (other than in connection with this letter
agreement).
8. NO WAIVER; AMENDMENT. No failure or delay by the Company or NRT, or
any Related Party of either of them, in exercising any right, power or privilege
under this letter agreement will operate as a waiver thereof, and no single or
partial exercise of any such right, power or privilege will preclude any other
or future exercise thereof or the exercise of any other right, power or
privilege under this letter agreement. No provision of this letter agreement can
be waived or amended except by means of a written instrument that is validly
executed by the
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Company and NRT and that refers specifically to the particular provision or
provisions being waived or amended.
9. REMEDIES. Each of NRT and the Company shall indemnify and hold
harmless the other party, and all Related Parties of the other party, against
and from, and shall reimburse the other party, and the other party's Related
Parties, for any damage, loss, claim, liability or expense (including reasonable
legal fees and the cost of enforcing the other party's rights under this letter
agreement) arising directly or indirectly out of or resulting directly or
indirectly from any unauthorized use or disclosure of any Confidential
Information as to which such party has a confidentiality obligation to the other
party under Section 2 or any other breach of this letter agreement. Each of NRT
and the Company acknowledges that money damages would not be a sufficient remedy
for any breach of this letter agreement by such party, or any of such party's
Related Parties, and that the other party would suffer irreparable harm as a
result of any such breach. Accordingly, the other party shall also be entitled
to equitable relief, including injunction and specific performance, as a remedy
for any breach or threatened breach of this letter agreement by such other party
or any of such party's Related Parties. The indemnification and equitable
remedies referred to above will not be deemed to be the exclusive remedies for a
breach of this letter agreement, but rather will be in addition to all other
remedies available at law or in equity to the aggrieved party. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that NRT, the Company, or any other respective Related
Parties, has breached this letter agreement intentionally or through gross
negligence, such party shall be liable for, and shall pay to the other party and
the other party's Related Parties the reasonable legal fees incurred by the
Company and the Company's Related Parties in connection with such litigation
(including any appeal relating thereto).
10. SUCCESSORS AND ASSIGNS; APPLICABLE LAW; JURISDICTION AND VENUE.
This letter agreement shall be binding upon and inure to the benefit of, the
Company, NRT and their respective Related Parties, and their respective heirs,
successors and assigns. This letter agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts (without giving
effect to principles of conflicts of laws). NRT and the Company, on their own
behalf and on behalf of their respective Related Parties: (a) irrevocably and
unconditionally consent and submit to the jurisdiction of the state and federal
courts located in the Commonwealth of Massachusetts for purposes of any action,
suit or proceeding arising out of or relating to this letter agreement; (b)
agree that service of any process, summons, notice or document by U.S.
registered mail to the address set forth at the end of this letter agreement
shall be effective service of process for any action, suit or proceeding brought
against NRT, the Company, or any of their respective Related Parties; (c)
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of or relating to this letter
agreement in any state or federal court located in the Commonwealth of
Massachusetts, whether on the grounds that it is improper or inconvenient; and
(d) irrevocably and unconditionally waive the right to plead or claim, and
irrevocably and unconditionally agree not to plead or claim, that any action,
suit or proceeding arising out of or relating to this letter agreement that is
brought in any state or federal court located in the Commonwealth of
Massachusetts has been brought in an inconvenient forum.
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12. MISCELLANEOUS.
(a) Section headings appearing in this letter agreement have been
included for convenience of reference only and shall not affect or be taken into
account in the interpretation of this letter agreement.
(b) The invalidity or unenforceability of any provision of this letter
agreement shall not affect the validity or enforceability of any other provision
of this letter agreement.
(c) By making Confidential Information or other information available
to NRT or NRT's Related Parties, the Company is not, and shall not be deemed to
be, granting (expressly or by implication) any license or other right under or
with respect to any patent, trade secret, copyright, trademark or other
proprietary or intellectual property right.
(d) The Company reserves the right to assign its rights, powers and
privileges under this letter agreement (including, without limitation, the right
to enforce the terms of this letter agreement) to any person who enters into a
Transaction.
(e) This letter agreement constitutes the entire agreement between NRT
and the Company regarding the subject matter hereof and supersedes any prior
agreement between NRT and the Company regarding the subject matter hereof.
(f) This letter agreement shall expire on December 31, 2004.
(g) This letter agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original copy of this letter agreement,
and all of which, when taken together, shall be deemed to constitute one and the
same letter agreement.
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If you are in agreement with the foregoing, please sign and return a
copy of this letter to the Company's Contact, whereupon this letter agreement
shall take effect, superseding the confidentiality letter agreement between the
parties dated May 3, 2002.
Very truly yours,
THE DEWOLFE COMPANIES, INC.
By: /s/ PAUL J. HARRINGTON
---------------------------
Name: PAUL J. HARRINGTON
Title: PRESIDENT
ACCEPTED AND AGREED TO:
NRT INCORPORATED
By: /s/ THOMAS J. FREEMAN
-----------------------------
Name: THOMAS J. FREEMAN
Title: SENIOR VICE PRESIDENT
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