1
Exhibit (a)(5)(B)
[LOGO GLOBAL NET FINANCIAL.COM]
33 Glasshouse Street London W1B 5DG
Tel: 020 7851 8100 - Fax: 020 7851 8200
August 7, 2001
AISoftw@re S.p.A.
Via C. Esterle, 9
Milan 20132
Italy
H
Attn: Prof. Francesco Gardin
Dear Prof. Gardin:
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 resulting in your acquisition of all
the outstanding shares of the Company. (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 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. For the avoidance of doubt, the parties hereto expressly
acknowledge and agree that Mr. Peter Fuhrman is not a "Representative" of
AISoftw@re S.p.A. ("AIS") Should Mr. Fuhrman make any statements purportedly on
behalf of AIS, you will make an immediate public announcement stating that Mr.
Fuhrman is not a "Representative" of AIS. 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.
GLOBALNETFINANCIAL.COM, INC. REGISTERED IN UNITED STATES OF AMERICA NO.
061489574
2
Other than as set forth in the press release attached hereto as
Exhibit A (such press release to be made simultaneously with the execution of
this agreement), you hereby represent that no law, order rule or regulation
(including those of any stock exchanges) to which you are subject require any
public disclosure of your execution of this agreement or of your discussions
with the Company and its Representatives at this time. 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.
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
3
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, sell or transfer any securities of the
Company, or communicate such information with any third party, other than with
your affiliates (as such term is defined in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended (the "1934 Act").
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 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"),
(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).
4
You further agree that for a period of two (2) years 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 agree that, in the event that you and the Company have not
entered into a definitive agreement with respect to a Transaction by 5:00 pm,
New York time, August 15, 2001, you will tender all shares of the Company common
stock owned by you and your affiliates into the tender offer currently
outstanding from GlobalNet Acquisitions Inc., a wholly-owned subsidiary of New
Media SPARK, plc ("SPARK"). You hereby agree that SPARK shall be a third party
beneficiary of the obligations set forth in this paragraph.
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 or
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.
5
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/ W. Thomas Hodgson
------------------------------
Name: W. Thomas Hodgson
Title: Chief Executive Officer
AISOFTW@RE, INC.
Accepted and agreed to as of
the date first written above:
By: /s/ Francesco Gardin
------------------------------
Name: Francesco Gardin
Title: Chief Executive Officer