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Exhibit (d)(4)
September 28, 1998
Hakan Winberg
Lindhagensplan 70
P.O. Box 12307
S-102 28 Stockholm, Sweden
Attention:
Gentlemen:
In order to allow you to evaluate the possible acquisition (the
"Proposed Acquisition") Borg-Warner Security Corporation (the "Company"), we
will deliver to you, upon your execution and delivery to us of this letter
agreement, certain information about the properties and operations of the
Company. All information about the Company furnished by us or our
Representatives (as defined below), whether furnished before or after the date
hereof, whether oral or written, and regardless of the manner in which it is
furnished, is referred to in this letter agreement as "Proprietary Information".
Proprietary Information does not include, however, information which (a) is or
becomes generally available to the public other than as a result of a disclosure
by you or your Representatives, (b) you can demonstrate was available to you on
a nonconfidential basis prior to its disclosure by us or our Representatives or
(c) becomes available to you on a nonconfidential basis from a person other than
us or our Representatives who is not otherwise bound by a confidentiality
agreement with us or any Representative of ours, or is otherwise not under an
obligation to us or any Representative of ours not to transmit the information
to you. As used in this letter agreement, the term "Representative" means, as to
any person, such person's affiliates and its and their directors, officers,
employees, agents, advisors (including, without limitation, financial advisors,
counsel and accountants) and controlling persons. As used in this letter
agreement, the term "person" shall be broadly interpreted to include, without
limitation, any corporation, company, partnership, other entity or individual.
Except as required by law, unless otherwise agreed to in writing by us,
you agree (a) to keep all Proprietary Information confidential and not to
disclose or reveal any Proprietary Information to any person other than your
Representatives who are actively and directly participating in your evaluation
of the Proposed Acquisition or who otherwise need to know the Proprietary
Information for the purpose of evaluating the Proposed Acquisition and to cause
those persons to observe the terms of this letter agreement, (b) not to use
Proprietary Information
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for any purpose other than in connection with your evaluation of the Proposed
Acquisition or the consummation of the Proposed Acquisition in a manner that we
have approved and (c) not to disclose to any person (other than those of your
Representatives who are actively and directly participating in your evaluation
of the Proposed Acquisition or who otherwise need to know for the purpose of
evaluating the Proposed Acquisition and, in the case of your Representatives,
whom you will cause to observe the terms of this letter agreement) any
information about the Proposed Acquisition, or the terms or conditions or any
other facts relating thereto, including, without limitation, the fact that
discussions are taking place with respect thereto or the statues thereof, or the
fact that Proprietary Information has been made available to you or your
Representatives. You will notify the Company of any unauthorized disclosure to
third parties that you discover, and you shall endeavor to prevent further such
disclosures. You will be responsible for any breach of the terms of this letter
agreement by you or your Representatives.
In the event that you are requested pursuant to, or required by,
applicable law or regulation or by legal process to disclose any Proprietary
Information or any other information concerning the Company or the Proposed
Acquisition, you agree that you will provide us with prompt notice of such
request or requirement in order to enable us to seek an appropriate protective
order or other remedy, to consult with you with respect to our taking steps to
resist or narrow the scope of such request or legal process, or to waive
compliance, in whole or in part, with the terms of this letter agreement. You
agree not to oppose any action by the Company to obtain a protective order or
other appropriate remedy. In the event that no such protective order or other
remedy is obtained, or that the Company waives compliance with the terms of this
letter agreement, you agree that you will furnish only that portion of the
Proprietary Information which you are advised by counsel is legally required. In
any such event you will use your reasonable best efforts to ensure that all
Proprietary Information and other information that is so disclosed will be
accorded confidential treatment. All Proprietary Information shall remain the
property of the Company, and neither you nor your Representatives shall acquire
any rights in the Proprietary Information by virtue of this letter agreement.
You also agree that for a period of three years from the date of this
letter agreement, neither you nor any of your Representatives will, without the
prior written consent of the Company or its Board of Directors:
(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
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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" 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 any of its
securities or assets;
(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; or
(e) request the Company or any of our Representatives, directly or
indirectly, to amend or waive any provision of this paragraph.
You will promptly advise the Company of any inquiry or proposal made to
you with respect to any of the foregoing.
If you determine that you do not wish to proceed with the Proposed
Acquisition, you will promptly advise us of that decision. In that case, or in
the event that we, in our sole discretion, so request or the Proposed
Acquisition is not consummated by you, you will, upon our request and at our
option, promptly either (i) deliver to us all Proprietary Information, including
all copies, reproductions, summaries, analyses or extracts thereof or based
thereon in your possession or in the possession of any Representative of yours,
or (ii) cause such Proprietary Information to be destroyed with any such
destruction confirmed by you in writing to the Company.
You acknowledge that none of the Company, Merrill Lynch, Pierce, Fenner
& Smith Incorporated ("Merrill Lynch") or our other Representatives or any of
our respective affiliates, officers, directors, employees, agents or controlling
persons has an obligation to furnish you Proprietary Information, makes any
express or implied representation or warranty as to the accuracy or completeness
of any Proprietary Information, and you agree that none of such persons shall
have any liability to you or any of your Representatives relating to or arising
from your or their use of any Proprietary Information or for any errors therein
or omissions therefrom. You also agree that you are not entitled to rely on the
accuracy or completeness of any Proprietary Information and that you shall be
entitled to rely solely on such representations and warranties regarding
Proprietary Information as
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may be made to you in any final acquisition agreement relating to the Proposed
Acquisition, subject to the terms and conditions of such agreement.
You agree that, without our prior written consent, you will not for a
period of three years from the date hereof directly or indirectly solicit for
employment or employ any person who is now employed by us or any of our
affiliates and who is identified by you as a result of your evaluation or
otherwise in connection with the Proposed Acquisition; provided, however, that
you shall not be prohibited from employing any such person who contacts you on
his or her own initiative and without any direct or indirect solicitation from
you.
You agree that until a final acquisition agreement regarding the
Proposed Acquisition has been executed by you and us, neither we nor any of our
Representatives are under any legal obligation and shall have no liability to
you of any nature whatsoever with respect to the Proposed Acquisition by virtue
of this letter agreement or otherwise. You also acknowledge and agree that (i)
we and our Representatives may conduct the process that may or not result in the
Proposed Acquisition in such manner as we, in our sole discretion, may determine
(including, without limitation, negotiating and entering into a final
acquisition agreement with any third party without notice to you) and (ii) we
reserve the right to change (in our sole discretion, at any time and without
notice to you) the procedures relating to our and your consideration of the
Proposed Acquisition (including, without limitation, terminating all further
discussions with you and requesting that you return all Proprietary Information
to us).
Without prejudice to the rights and remedies otherwise available to us,
you agree we shall be entitled to equitable relief by way of injunction or
otherwise if you or any of your Representatives breach or threaten to breach any
of the provisions of this letter agreement. You also agree to indemnify and hold
us harmless from any damages, loss, cost or liability (including legal fees and
the cost of enforcing this indemnity) arising out of or resulting from any
unauthorized use or disclosure by you or your Representatives of the Proprietary
Information.
It is further understood and agreed that no failure or delay by us in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts executed in and
to be performed in that state. We, you and our respective Representatives agree
to submit to personal jurisdiction of the New York courts in respects to any
matter or dispute arising out of this agreement.
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Any assignment of this letter agreement by you without our prior
written consent shall be void.
You agree that any notice to be provided to us hereunder shall be
provided in writing to us at the following address: Borg-Warner Security
Corporation, 200 South Michigan Avenue, Chicago, IL, 60604, Attention: General
Counsel and Corporate Secretary; or such other address as to which we inform you
in writing.
If any provision of this letter agreement shall for any reason, be
adjudged by any court of competent jurisdiction to be invalid or unenforceable,
such judgment shall not affect, impair or invalidate the remainder of this
letter agreement but shall be confined in its operation to the provision of this
agreement directly involved in the controversy in which such judgment shall have
been rendered.
This letter agreement contains the entire agreement between you and us
concerning confidentiality of the Proprietary Information, and no modification
of this letter agreement or waiver of the terms and conditions hereof shall be
binding upon you or us, unless approved in writing by each of you and us.
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Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
Borg-Warner Security Corporation
By: /s/ Robert Lackey
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Robert E.T. Lackey
General Counsel and Corporate Secretary
Accepted and Agreed
as of the date
first written above
SECURITAS AB
By: /s/ Hakan Winberg
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Hakan Winberg
Title:
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