CONFIDENTIALITY AGREEMENT
Exhibit
(d)(4)
September 17, 2009
Xx. Xxxxxx Xxxxx
President & Chief Executive Officer
Shiseido Company, Limited
0-0-0 Xxxxx
Xxxx-xx, Xxxxx 0000000
Xxxxx
Ladies and Gentlemen:
In connection with your possible interest in Bare Escentuals,
Inc. (“we,” “us” or the
“Company”), including a potential transaction
(“Transaction”) involving you and the Company
(the “parties” to this Agreement), each party has
requested that the other party or its representatives furnish
the party or its representatives with certain non-public,
confidential or proprietary information relating to the other
party, its affiliates, its subsidiaries or the Transaction. All
information (whether written or oral) furnished (whether before
or after the date hereof) by each party or its directors,
officers, employees, affiliates, representatives (including,
without limitation, financial advisors, attorneys and
accountants) or agents (collectively,
“Representatives”) to the other party or its
Representatives and all analyses, compilations,
forecasts, studies or other documents prepared by each party or
its Representatives which contain, are based on, or otherwise
reflect any such information on its or their review of, or your
interest in, the Transaction which contain or reflect any such
information is hereinafter referred to as the
“Information.” For the avoidance of doubt, the
definition of Information also includes all of the information
referenced in Paragraph 2 herein. The term Information
provided by each party will not, however, include information
which (i) is already in the other party’s possession,
provided that such information is not known by the other party
(after due inquiry) to be subject to another confidentiality
agreement with or other obligation of secrecy to the party,
(ii) is or becomes publicly available other than as a
result of a disclosure by the other party or its Representatives
in violation of this letter agreement or other obligation of
confidentiality to the party or (iii) is or becomes
available to the other party on a nonconfidential basis from a
source (other than the party or its Representatives) not known
by the other party (after due inquiry) to be prohibited from
disclosing such information to the other party by contractual
obligation to the party.
Accordingly, each party hereby agrees that:
1. Each party (i) will keep the Information
confidential and will not (except as required by applicable law,
regulation or legal process, and only after compliance with
paragraph 3 below), without the other party’s prior
written consent, disclose any Information in any manner
whatsoever, in whole or in part, and (ii) will not use any
Information other than in connection with the Transaction
(including financing); provided, however, that
each party may disclose the Information or portions thereof to
its Representatives (a) who need to know the Information
for the purpose of evaluating or consummating the Transaction
(including financing), (b) who are informed by the party of
the confidential nature of the Information and (c) whom the
party directs to comply with the confidentiality obligations of
this letter agreement. For avoidance of doubt, paragraphs 6 and
7 shall not apply to Representatives of each party other than
such party’s directors, officers, employees and affiliates.
Each party will be responsible for any actions by its
Representatives (including, without limitation, any
Representatives who subsequent to the date hereof become its
former Representatives) which would constitute a breach of this
letter agreement.
2. Each party will not (except as required by applicable
law, regulation or legal process, and only after compliance with
paragraph 3 below), without the other party’s prior
written consent, disclose to any person other than its
Representatives in accordance with paragraph 1 above the
fact that the Information exists or has been made available to
such party or its Representatives, that you are considering the
Transaction involving the Company, or that discussions or
negotiations are taking or have taken place concerning the
Transaction or involving the Company or any term, condition or
other fact relating to the Transaction or such discussions or
negotiations, including, without limitation, the status thereof
or the subject matter of this letter agreement. The
Shiseido Company, Limited
September 17, 2009
Page 2
term “person” as used in this letter agreement
will be interpreted broadly to include any corporation, company,
group, partnership or other entity or individual.
3. In the event that either party is requested pursuant to,
or required by, applicable law, regulation, legal process,
regulatory authority or any other entity that has jurisdiction
over the party or its Representative’s activities to
disclose any of the Information, the party will, to the extent
permissible, provide written notice to the other party promptly
after such request and prior to responding so that the other
party may seek an appropriate protective order or other
appropriate remedy or, in the other party’s sole
discretion, waive compliance with the terms of this letter
agreement (and if the other party seeks such an order or other
remedy, the party will provide such cooperation as the other
party shall reasonably request). In the event that no such
protective order or other remedy is obtained or the other party
waives compliance with the terms of this letter agreement and
that the party is or any of its Representatives is nonetheless
legally compelled to disclose such Information, the party or its
Representatives, as the case may be, may furnish only that
portion of the Information which the party is advised by its
counsel is legally required or is practically required in order
to keep smooth relationship with the competent administrative
agencies and, to the extent permissible, will give the other
party written notice of the Information to be disclosed and
exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the Information.
4. If either party determines not to proceed with the
Transaction with the other party, the party will promptly inform
the other party (in the case that you determine not to proceed
with the Transaction, you will promptly inform Xxxxxxx,
Sachs & Co. (“GS”)) of that decision.
In that case or at any other time upon the request of the other
party or any of its Representatives, the party shall (and the
party shall direct its Representatives to) (i) promptly
destroy or deliver to the other party all Information provided
to the party or its Representatives and (ii) not retain any
copies, extracts or other reproductions in whole or in part of
such material. Upon request, the party will confirm for the
other party in writing that all such material has been so
redelivered or destroyed. Notwithstanding the delivery or
destruction of the materials required by this paragraph, unless
otherwise provided for in this letter agreement, all duties and
obligations existing under this letter agreement (including with
respect to any oral Information) will remain in full force and
effect for a period of two years from the date hereof.
Notwithstanding the foregoing, nothing in this letter shall in
any way prohibit or restrict either party or its Representatives
from complying with its regulatory recordkeeping requirements.
5. You acknowledge that neither we nor any of our
Representatives, nor any of our or their respective officers,
directors, employees, agents or controlling persons within the
meaning of Section 20 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), make any
representation or warranty, express or implied, as to the
accuracy or completeness of the Information, and you agree that
no such person will have any liability relating to the
Information or for any errors therein or omissions therefrom.
You further agree that you are not entitled to rely on the
accuracy or completeness of the Information and that you will be
entitled to rely solely on such representations and warranties
as may be included in any definitive agreement with respect to
the Transaction, when, as and if executed, and subject to such
limitations and restrictions as may be contained therein. For
purposes of this letter agreement, a “definitive
agreement” does not include an executed letter of
intent or any other preliminary written agreement, nor does it
include any written or oral acceptance of an offer or bid.
6. Each party agrees that, for a period of two years from
the date of this letter agreement, the party will not, and the
party will cause its affiliates not to, without the prior
written consent of the other party, directly or indirectly,
solicit for employment or hire (or cause or seek to cause to
leave the employ of the other party) any employee of the other
party of whom the party became aware as a result of its review
of the Information or the Transaction; provided, however,
that nothing in this letter agreement shall be deemed to
prohibit any general solicitation for employment not
specifically directed at employees of the other party. Each
party also agrees that until two years from the date of this
letter agreement, the party will not, and the party will cause
its affiliates not to, without the prior written consent of the
other party, initiate or maintain contact (except in the
Shiseido Company, Limited
September 17, 2009
Page 3
ordinary course of business) with any officer, director,
employee, independent contractor, supplier, distributor, broker
or customer of the other party regarding the other party, the
Transaction or the Information.
7. You agree that, for a period of two years following the
date hereof (the “Standstill Period”), you will
not, and you will cause your affiliates not to, directly or
indirectly, without the prior written consent of the Board of
Directors of the Company, (i) acquire, agree to acquire,
propose, seek or offer to acquire, or facilitate the acquisition
or ownership of, any securities or assets of the Company or any
of its subsidiaries, any warrant or option to purchase such
securities or assets, any security convertible into any such
securities, or any other right to acquire such securities or
assets (other than purchases of products in the ordinary course
of business), (ii) enter, agree to enter, propose, seek or
offer to enter into or facilitate any merger, business
combination, recapitalization, restructuring or other
extraordinary transaction involving the Company or any of its
subsidiaries, (iii) make, or in any way participate or
engage in, any solicitation of proxies to vote, or seek to
advise or influence any person with respect to the voting of,
any voting securities of the Company, (iv) form, join or in
any way participate in a “group” (within the meaning
of Section 13(d)(3) of the Exchange Act) with respect to
any voting securities of the Company, (v) call, request the
calling of, or otherwise seek or assist in the calling of a
special meeting of the shareholders of the Company,
(vi) otherwise act, alone or in concert with others, to
seek to control or influence the management or the policies of
the Company, (vii) disclose any intention, plan or
arrangement prohibited by, or inconsistent with, the foregoing,
or (viii) advise, assist or encourage or enter into any
discussions, negotiations, agreements or arrangements with any
other persons in connection with the foregoing. You further
agree that during the Standstill Period you will not, and you
will cause your affiliates not to, directly or indirectly,
without the prior written consent of the Board of Directors of
the Company, (a) make any request directly or indirectly,
to amend or waive any provision of this paragraph (including
this sentence), or (b) take any action that might require
the Company to make a public announcement regarding the
possibility of a business combination, merger or other type of
transaction described in this paragraph. Notwithstanding the
foregoing or anything to the contrary contained in this letter
agreement, the Standstill Period shall expire immediately if a
third party announces or initiates a tender offer bid for the
shares in the Company; provided, however, that you shall not
have solicited, initiated, encouraged or taken any action to
facilitate or assist or participate with any person or group in
connection with any such tender offer.
8. You acknowledge and agree that you are aware, and that
you will advise your Representatives who are informed of any of
the Information referred to in this letter agreement, of the
restrictions imposed by applicable securities laws restricting
trading in securities while in possession of material non-public
information received from the issuer of such securities and on
communication of such information when it is reasonably
foreseeable that the recipient is likely to trade such
securities in reliance on such information.
9. You agree that all communications regarding the
Transaction, including requests for additional information, will
be first submitted or directed to GS and not to the Company. You
acknowledge and agree that we and our Representatives reserve
the right, in our sole discretion, to reject any and all
proposals made by you or any of your Representatives with
respect to the Transaction and to terminate discussions and
negotiations with you at any time and for any reason. Moreover,
unless and until a written definitive agreement concerning the
Transaction has been executed, neither we nor any of our
Representatives (nor any of our or their respective officers,
directors, employees, agents or controlling persons within the
meaning of Section 20 of the Exchange Act) will have any
liability to you with respect to the Transaction or any
obligation of any kind whatsoever with respect to a Transaction,
whether by virtue of this letter agreement, any other written or
oral expression with respect to the Transaction or otherwise.
10. Each party agrees to indemnify the other party against
any and all losses, damages, claims or expenses incurred or
suffered by the other party as a result of any breach of the
provisions of this letter agreement by the party or its
Representatives. Each party understands and acknowledges that
any disclosure or misappropriation of any of the Information in
violation of this letter agreement may cause the other party
irreparable harm, the amount of which may be difficult to
ascertain. Each party agrees that the other party shall be
entitled to equitable relief, including injunction, in the event
of the party’s breach (either actual or
Shiseido Company, Limited
September 17, 2009
Page 4
threatened) of this letter agreement (without necessity of
posting any bond or other security or proving special damages)
and that the party shall not oppose the granting of such relief.
11. Each party agrees that no failure or delay by the other
party or any of its Representatives in exercising any right
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 right hereunder.
12. This letter agreement will be governed by and construed
in accordance with the laws of the State of Delaware applicable
to contracts between residents of that State and executed in and
to be performed entirely within that State. Each party hereby
(i) submits to the non-exclusive jurisdiction of any
Delaware State or Federal court sitting in Wilmington with
respect to all actions and proceedings arising out of, or
relating to, this letter agreement, (ii) agrees that all
claims with respect to any such action or proceeding may be
heard and determined in such Delaware State or Federal court,
(iii) waives the defense of an inconvenient forum,
(iv) consents to service of process upon the party by
mailing or delivering such service to the party’s address
set forth on the first page hereof and (v) agrees that a
final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
13. This letter agreement contains the entire agreement
between you and us concerning the subject matter hereof, and no
provision of this letter agreement may be waived, amended or
modified, in whole or in part, nor any consent given, unless
approved in writing by a duly authorized representative of the
other party, which writing specifically refers to this letter
agreement and the provision so amended or modified or for which
such waiver or consent is given. In the event that any provision
of this letter agreement is deemed invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of this letter agreement will not in any
way be affected or impaired thereby.
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Shiseido Company, Limited
September 17, 2009
Page 5
Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter
enclosed herewith.
Very truly yours,
BARE ESCENTUALS, INC.
By:
/s/ Xxxxx
XxXxxxxxx
Name: Xxxxx XxXxxxxxx
| Title: CFO & COO |
Accepted and agreed to
as of the date first written above:
SHISEIDO COMPANY, LIMITED
By:
/s/ Shinzo
Maeda
Name: Shinzo Maeda
| Title: President & CEO |
