EXHIBIT 4
BAREFOOT INC.
000 X. XXXXXX XXXXXX XXXX
XXXXXXXXXXX, XXXX 00000
November 11, 1996
The ServiceMaster Company
Xxx XxxxxxxXxxxxx Xxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
President and Chief Executive Officer
Re: Confidentiality Agreement
Gentlemen:
In connection with your consideration of a possible transaction with
Barefoot Inc. (the "Company") and its stockholders, you have requested
information concerning the Company. As a condition to your being furnished
such information (which may include information provided in writing, orally or
by inspection), you agree to treat any information concerning the Company
(whether prepared by the Company, its advisors or otherwise) which is
furnished to you or your advisors by or on behalf of the Company (herein
collectively referred to as the "Evaluation Material") in accordance with the
provisions of this letter and to take or abstain from taking certain other
actions herein set forth. The term "Evaluation Material" does not include
information which (i) is already in your possession, provided that such
information is not known by you to be subject to another confidentiality
agreement with or other obligation of secrecy to the Company or another party,
or (ii) becomes generally available to the public other than as a result of a
disclosure by you or your directors, officers, employees, agents or advisors,
or (iii) becomes available to you on a non-confidential basis from a source
other than the Company or its advisors, provided that such source is not known
by you to be bound by a confidentiality agreement with or other obligation of
secrecy to the Company or another party.
You hereby agree that the Evaluation Material will be used solely for the
purpose of evaluating a possible transaction between the Company and its
stockholders and you, and that such information will be kept confidential by
you and your advisors; provided, however, that (i) any of such information may
be disclosed to your directors, officers and employees and representatives of
your advisors who need to know such information for the purpose of evaluating
any such possible transaction between the Company and you (it being understood
that such directors, officers, employees and representatives shall be informed
by you of (a) the confidential nature of such information and (b) the terms of
this agreement and the obligation of confidentiality undertaken by you under
this agreement, and shall be directed by you to treat such information
confidentially), (ii) any disclosure of such information may be made to which
the Company consents in writing, and (iii) any disclosure required by
applicable law or legal proceedings may be made, subject to compliance with
this agreement. You will be liable for any breach of this agreement by any of
your directors, officers, employees, representatives or advisors.
You hereby acknowledge that you are aware, and that you will advise such
directors, officers, employees and representatives who are informed as to the
matters which are the subject of this letter, that the United States
securities laws prohibit any person who has received from an issuer material,
non-public information, including information concerning the matters which are
the subject of this letter, 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 such securities.
In addition, without the prior written consent of the Company, you will not,
and will direct such directors, officers, employees and representatives not to
disclose to any person the fact that discussions or negotiations are taking
place concerning a possible transaction between you and the Company and its
stockholders, including the
status thereof, except for disclosures required by applicable law or legal
proceedings. Conversely, without your prior written consent, the Company will
not, and will direct its directors, officers, employees and representatives
not to, disclose to any person the fact that discussions or negotiations are
taking place concerning a possible transaction between the Company and you,
including the status thereof, except for disclosures required by applicable
law or legal proceedings. Notwithstanding any provision of this letter to the
contrary, in the event that you are requested or required in a judicial,
administrative or governmental proceeding to disclose any Evaluation Material,
you will provide us with prompt written notice of such request and all related
proceedings so that we may seek an appropriate protective order or waive your
compliance with the confidentiality provisions of this letter. If, as a result
of any such request or requirement, you are, in the written opinion of your
counsel, compelled to disclose Evaluation Material to any tribunal or else
stand liable for contempt or other censure or penalty, you may disclose such
Evaluation Material to such tribunal without liability hereunder provided that
you comply with the notice provisions of this paragraph.
You also agree that the Company shall be entitled to equitable relief,
including injunctive relief, in the event of any breach of the provisions of
this agreement and that you shall not oppose the granting of such relief.
Although the Company will endeavor to include in the Evaluation Material
information known to it which it believes to be relevant for the purpose of
your investigation, you understand that neither the Company nor any of its
representatives or advisors have made or make any representation or warranty
as to the accuracy or completeness of the Evaluation Material. You agree that
neither the Company nor its representatives or advisors shall have any
liability to you or any of your representatives or advisors resulting from the
use of the Evaluation Material.
In consideration of the fact that you will be expending time and incurring
costs in order to determine whether to propose a transaction with the Company
and its stockholders, we agree that for a period of 32 days from the date of
this letter, the Company will not solicit any prospective purchasers of all or
substantially all of the assets of the Company or of equity interests in the
Company.
If you determine that you do not wish to proceed with the transaction which
is the subject of this letter, you will promptly advise us of that decision.
In the event that the Company or you decides not to proceed with such
transaction, you shall promptly return to the Company at the Company's request
all written Evaluation Material and any other written material containing or
reflecting any information in the Evaluation Material (whether prepared by
you, the Company, your advisors or otherwise) and will not retain any copies,
extracts or other reproductions in whole or in part of such written material.
Notwithstanding the foregoing provisions, you shall not be required to deliver
to the Company the materials which you generate internally and which do not
constitute copies of the Evaluation Materials, including (but not limited to)
financial analyses prepared for your management and reports made to you board
of directors, provided that such materials shall be held by you and kept
subject to the terms of this agreement or destroyed.
We each understand and agree that no contract or agreement providing for a
transaction with the Company or its stockholders shall be deemed to exist
between you and the Company unless and until you and the Company execute and
deliver a definitive agreement (a "Transaction Agreement") and we each hereby
waive, in advance, any claims (including, without limitation, breach of
contract) in connection with a possible transaction with the Company unless
and until you and the Company shall have executed and delivered a Transaction
Agreement. We each also agree that unless and until a Transaction Agreement
between the Company and you has been executed and delivered, there is no legal
obligation of any kind whatsoever with respect to any such transaction by
virtue of this letter or any other written or oral expression with respect to
any such transaction except, in the case of this letter, for the matters
specifically agreed to herein. Nothing in this agreement shall be deemed to
require the Company to accept any offer in connection with a possible
transaction. For purposes of this paragraph, the term "Transaction Agreement"
does not include an executed letter of intent or any other preliminary written
agreement, nor does it include any written or verbal acceptance of an offer or
bid on your part. The agreements set forth in this letter may be modified or
waived only by a separate writing by the Company and you expressly so
modifying or waiving such agreements.
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Until the earlier of (i) the execution by you of a Transaction Agreement or
(ii) two years from the date of this letter agreement, you agree not to
initiate or maintain contact (except for those contacts made in the ordinary
course of business) with any officer, director or employee or agent of the
Company or any subsidiary of the Company regarding its business, operations,
prospects or finances, except with the express written permission of the
Company. You further agree that for a period of two years from the date hereof,
you will not hire any of the employees of the Company or any subsidiary of the
Company with whom you had contact or any key employees you became aware of
during the period of your investigation of the Company.
You also agree that for a period of two years from the date of this letter
agreement, neither you nor any of your affiliates (as that term is defined in
SEC Rule 144) will, without the prior written consent of the Company:
(a) acquire, offer to acquire, or agree to acquire, directly or indirectly,
by purchase or otherwise, any voting securities or direct or indirect
rights to acquire any voting securities of the Company or any
subsidiary thereof, or of any successor to or person in control of the
Company, or any assets of the Company or any subsidiary or division
thereof or of any such successor or controlling person;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" or consents to vote (as such terms are used
in the rules of the Securities and Exchange Commission), or seek to
advise or influence any person or entity with respect to the voting of,
any voting securities of the Company;
(c) make any public announcement with respect to, or submit a proposal for,
or offer of (with or without conditions), any extraordinary transaction
involving the Company or its securities or assets; or
(d) form, join or in any way participate in a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended, in
connection with any of the foregoing.
This letter shall be governed by, and construed in accordance with, the laws
of the State of Ohio and may be executed in counterparts.
Very truly yours,
Barefoot Inc.
/s/ Xxxxxxx X. Xxxxxx
By: _________________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive
Officer
Confirmed and Agreed to:
The ServiceMaster Company
/s/ Xxxxxx X. Xxxxx
By: _________________________________
Xxxxxx X. Xxxxx
President and Chief Executive
Officer
This 11th day of November, 1996
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