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Exhibit (d)(4)
LOGO TO COME
33 Glasshouse Street London W1B 5DG
Tel: 020 7851 8100 -- Fax: 020 7851 8200
31st May 2001
New Media SPARK plc
Attention: Joel Plasco
33 Glasshouse Street
London W1B 5DG
Dear Joel
You have requested certain information relating to GlobalNet Financial.com,
a Delaware corporation, (the "Company"), and its subsidiaries in connection with
your consideration of a possible negotiated transaction between the Company
and/or its subsidiaries and you (a "Transaction").
As a condition to the furnishing to you and your Representatives (as
defined below) of a confidential Memorandum and other information regarding the
Company and its energy related businesses, you agree that (i) all information
relating to the Company furnished by or on behalf of the Company to you or your
Representatives, whether prior to or after your acceptance of this letter and
irrespective of the form of communication, or learned by you in connection with
visits to the Company's facilities, in connection with your consideration of a
Transaction (such information, together with notes, memoranda, summaries,
analyses, compilations and other writings relating thereto or based thereon
prepared by you or your Representatives being referred to herein as the
"Evaluation Material") will be kept strictly confidential, and (ii) the
Evaluation Material will be used solely for the purpose of determining the
desirability of a Transaction; provided, however, that the Evaluation Material
may be disclosed to any of your Representatives who need to know such
information for the purpose of assisting you in evaluating a Transaction (it
being understood that such Representatives will be informed by you of the
contents of this agreement and that, by receiving such information, such
Representatives are agreeing to be bound by this agreement). The term
"Evaluation Material" does not include information which was or becomes
available to you or any of your Representatives on a non-confidential basis from
a source other than the Company or its affiliates or Representatives, provided
that neither you nor any of your Representatives is aware that such source is
under an obligation (whether contractual, legal or fiduciary) to the Company to
keep such information confidential. For purposes hereof, the "Representatives"
of any entity means such entity's directors, officers, employees, legal and
financial advisors, accountants and other agents, consultants and
representatives. You will be responsible for any breach of this agreement by any
of your Representatives and agree to take all reasonable measures to restrain
your Representatives from prohibited or unauthorized disclosure or use of
Evaluation Material.
In addition, you agree that, except with the prior written consent of the
Company or as required or permitted by this agreement, you will not, and you
will direct your Representatives not to, make any release to the press or other
public disclosure, or make any statement to any employee, competitor, customer
or supplier of the Company or any of its direct or indirect subsidiaries or any
other person concerning either (i) the existence of this letter or that the
Evaluation Material has been made available to you or (ii) in the event that the
Company or any its of Representatives engages in discussions or negotiations
with you or your Representatives, the fact that discussions or negotiations are
taking place or have taken place concerning a possible Transaction, or any of
the terms, conditions or other facts with respect to any such possible
Transaction, including the status thereof, except for such public disclosure as
may be necessary, in the written opinion of your outside counsel, for you not to
be in violation of or default under any applicable law, regulation or
governmental order. If you propose to make any disclosure based upon such an
opinion, you will deliver a copy of such opinion to the Company together with
the text of the proposed disclosure as far in advance of its disclosure as is
reasonably practicable, and will in good faith consult with and consider the
suggestions of the Company and its Representatives concerning the nature and
scope of the information you propose to disclose.
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If you or any of your Representatives are requested in any judicial or
administrative proceeding or by any governmental or regulatory authority to
disclose any Evaluation Material, you will (i) give the Company prompt notice of
such request so that the Company may seek an appropriate protective order and
(ii) consult with the Company as to the advisability of taking legally available
steps to resist or narrow such a request. You will cooperate fully with the
Company in obtaining such an order. If in the absence of a protective order you
are nonetheless compelled to disclose Evaluation Material, the Company agrees
that you may make such disclosure without liability hereunder, provided that you
give the Company written notice of the information to be disclosed as far in
advance of its disclosure as is practicable and, upon the Company's request and
at its expense, use your best efforts to obtain reasonable assurances that
confidential treatment will be accorded to such information.
At any time after termination of discussions by either party to this
agreement with respect to a Transaction, upon the request of the Company, you
will promptly (and in no event later than five (5) business days after such
request) redeliver or cause to be redelivered to the Company all copies of the
Evaluation Material furnished to you by or on behalf of the Company and destroy
or cause to be destroyed all Evaluation Material prepared by you or any of your
Representatives. Notwithstanding the return or destruction of the Evaluation
Material, you and your Representatives will continue to be bound by your
obligations hereunder.
Although the Company will endeavor to include in the Evaluation Material
information it believes to be relevant to the evaluation of a Transaction, you
hereby acknowledge that neither the Company nor any of its affiliates or
Representatives makes any representation or warranty, express or implied, as to
the accuracy or completeness of any of the Evaluation Material. You agree that
neither the Company nor any of its affiliates or Representatives will have any
liability to you or your Representatives resulting from use of any of the
Evaluation Material.
You hereby acknowledge that you are aware (and that your Representatives
who have been apprised of this agreement and your consideration of a Transaction
have been, or upon becoming so apprised, will be advised) of the restrictions
imposed by federal and state securities laws on a person possessing material
nonpublic information about a company. In this regard, you hereby agree that
while you are in possession of material nonpublic information with respect to
the Company and its subsidiaries, you will not purchase or sell any securities
of the Company, or communicate such information with any third party, in
violation of any such laws.
You also agree not to initiate or maintain contact (other than in the
ordinary course of business) with any officer, director, employee or agent of
the Company or any of its subsidiaries regarding its business, operations,
prospects, finances or any other matter pertaining to the Company or to any
proposed Transaction, other than W. Thomas Hodgson, Richard Guest or Ron Goldie.
It is understood that they will arrange for appropriate contacts for due
diligence purposes. It is further understood that all (i) communications
regarding a possible Transaction, (ii) requests for additional information,
(iii) requests for facility tours or management meetings and (iv) discussions or
questions regarding procedures, will be submitted or directed to one or all of
these individuals. You hereby acknowledge that you may be disqualified from
participating in a Transaction if you fail to comply with the procedures and
restrictions set forth in this paragraph and the following paragraph.
As a further condition to the furnishing of the Evaluation Material, you
agree that you, your affiliates and associates (as such terms are defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "1934
Act")) and your Representatives will not, and you and they will not assist or
encourage others (including by providing financing) to, directly or indirectly,
for a period of two (2) years from the date of this agreement, unless
specifically requested or permitted in writing in advance by the Company or us:
(i) acquire or agree, offer, seek or propose (whether publicly or
otherwise) to acquire ownership (including but not limited to
beneficial ownership (as defined in Rule 13d-3 under the 1934 Act))
of (x) the Company or any of its assets or businesses, (y) any
securities issued by the Company or (z) any rights or options to
acquire such ownership (including from a person other than the
Company), whether by means of a negotiated purchase of securities or
assets, tender or exchange offer, merger or other business
combination, recapitalization, restructuring or other extraordinary
transaction (a "Business Combination Transaction"),
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(ii) engage in any "solicitation" of "proxies" (as such terms are used in
the proxy rules promulgated under the 1934 Act, but disregarding
clause (iv) of Rule 14a-1(l)(2) and including any exempt
solicitation pursuant to Rule 14a-2(b)(1) or (2)), or form, join or
in any way participate in a "group" (as defined under the 1934 Act),
with respect to any securities issued by the Company,
(iii) otherwise seek or propose to influence or control the Board of
Directors, management or policies of the Company,
(iv) take any action that could reasonably be expected to require the
Company to make a public announcement regarding any of the types of
matters referred to in clause (i), (ii) or (iii) above; or
(ii) enter into any discussions, negotiations, agreements, arrangements
or understandings with any third party with respect to any of the
foregoing (other than with a bona fide financial institution which
is your Representative).
You also agree not to request the Company or any of its Representatives to amend
or waive any provision of this paragraph (including this sentence). If at any
time you are approached by any third party concerning your or their
participation in any of the types of matters referred to in clauses (i) and (ii)
above, you will not communicate with such third party concerning such
participation, except that you will promptly inform such third party that you
are bound by certain confidentiality obligations in respect of such assets,
businesses or securities (without referring to this letter).
You further agree that for a period of one (1) year from the date hereof,
neither you nor any of your affiliates will solicit to employ or employ any
officer or employee of the Company or any of its subsidiaries, so long as they
are employed by the Company or any of its subsidiaries, without obtaining the
prior written consent of the Company. The term "solicit to employ" does not
include general solicitations of employment not specifically directed towards
employees of the Company and its subsidiaries.
It is expressly understood by the parties hereto that this agreement is not
intended to, and does not, constitute an agreement to consummate a Transaction
or to enter into a definitive Transaction agreement, and neither the Company nor
you will have any rights or obligations of any kind whatsoever with respect to a
Transaction by virtue of this agreement or any other written or oral expression
by either party hereto or their respective Representatives unless and until a
definitive agreement relating thereto between the Company and you is executed
and delivered, other than for the matters specifically agreed to herein.
You further acknowledge that (i) the Company and its Representatives shall
be free to negotiate with any other person and enter into a definitive agreement
with regard to a Transaction without prior notice to you or any other person,
(ii) the Company reserves the right to reject any and all proposals made by you
or any of your Representatives with regard to a possible Transaction and to
terminate any discussions or negotiations with you at any time, and (iii)
neither the Company nor any of its affiliates or Representatives nor any third
party with whom the Company enters into any agreement for, or completes, a
Business Combination Transaction shall have any liability to you arising out of
or relating to such a Business Combination Transaction (other than any liability
arising under a definitive Transaction agreement with you in accordance with the
terms thereof).
You acknowledge and agree that money damages would not be a sufficient
remedy for any breach of any provision of this agreement by you, and that in
addition to all other remedies which we or the Company may have, we and the
Company will be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach. No failure or delay by us or
the Company 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 other right, power
or privilege hereunder.
This agreement (i) contains the sole and entire agreement between the
parties with respect to the subject matter hereof, (ii) may be amended, modified
or waived only by a separate written instrument duly executed by or on behalf of
the Company and you, and (iii) shall be governed by and construed in accordance
with the laws of the State of New York. Except as otherwise expressly provided
herein, your obligations under this agreement will expire eighteen (18) months
from the date hereof.
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If the foregoing correctly sets forth our agreement with respect to the
matters set forth herein, please so indicate by signing two copies of this
agreement and returning one of such signed copies to us for our signature,
whereupon this agreement will constitute our binding agreement with respect to
the matters set forth herein.
Very truly yours,
GLOBALNET FINANCIAL.COM
By: /s/ Ron R. Goldie
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Name: Ron R. Goldie
Title: Chief Operating Officer
Accepted and agreed to as of
the date first written above:
New Media SPARK
By: /s/ Joel Plasco
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Name: Joel Plasco
Title: Director
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