EX-99.(D)(4) 19 d93617ex99-d4.txt CONFIDENTIALITY AGREEMENT DATED 1/19/00 Exhibit (d)(4) Daniel P. Casey Gaylord Container Corporation Executive Vice President 500 Lake Cook Road Suite 400 Deerfield, Illinois 60015-4925 (847) 405-5612 January 19, 2000 Temple-Inland Inc. 1300 South MoPac Austin, Texas 78746 Attention: Mr. Randall Levy Chief Financial Officer Ladies and Gentlemen: In connection with your possible interest in a transaction with Gaylord Container Corporation (the "Company"), we propose to furnish you with certain information related to the Company (herein referred to as the "Confidential Information"). Confidential Information includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that such information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have occurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations, are considered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and as a condition to such disclosure, you agree as follows: 1. The Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into a transaction with the Company, and for no other purpose. 2. You shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, discuss with or disclose it to anyone except to a limited group of your own employees, directors, officers, agents and professional service companies representing you as outside advisors ("Representatives") who are actually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be advised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms. You shall be responsible for any breach of this Agreement by any of your Representatives. 3. Upon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will return to the Company the Confidential Information which is in tangible form, including any copies which you may have made, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so, and (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business, any of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose whatsoever. 4. Confidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in connection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information which was publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by you or any of your Representatives). Information shall be deemed "publicly available" if it becomes a matter of public knowledge or is contained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees, agents or outside advisors), provided that such source is not to your knowledge prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or person prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company. 5. You understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and relevant for the purpose of your evaluation, but you acknowledge that neither the Company nor any of its directors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the Confidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use of the Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities of the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such securities to you. 6. In the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will provide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate remedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally required, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed. 7. Without the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of two years (i) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (ii) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar transaction relating to the Company, (iii) make , or in any way participate, directly or indirectly, in any "solicitation" of any "proxy" to vote (as such terms are used in the proxy 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, (iv) form, join or in any way participate, directly or indirectly, in a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, (a "Group") with respect to any voting securities of the Company, (v) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management, board of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this paragraph. Notwithstanding the foregoing, provisions (ii) through (viii) of this paragraph shall terminate upon the earlier of (a) the execution by the Company of any agreement providing for the sale of all or substantially all of the company's assets or the combination of the Company with or into any other entity other than a combination immediately following which the shareholders of the Company immediately prior to the combination hold, immediately after the combination, at least 51% of the voting securities of the post-combination entity or (b) any Group shall have commenced a tender or exchange offer as a result of which such person or group intends to acquire 51% or more of the capital stock of the Company entitled to vote in the election of directors or shall have acquired or announced an intention to acquire such a controlling interest. 8. You agree that for a period of two years, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any of the subsidiaries with whom you have had contact or who became known to you in connection with your evaluation of a possible transaction involving the Company; provided that the foregoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general solicitation of employment not specifically directed towards employees of the Company) from, you. 9. Without impairing any other provision hereof, you will promptly advise the Company of any prohibited disclosure or other breach of this Agreement. 10. You understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by you or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but shall be in addition to all other remedies available at law, or in equity. You further agree that no failure or delay by the Company, its directors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement 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 under this Agreement. 11. Nothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or negotiations with respect thereto. 12. This Agreement shall be governed by the laws of the State of New York. If you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to the subject matter of this letter as of the date first above written. Very truly yours, GAYLORD CONTAINER CORPORATION By: /s/ Daniel P. Casey ------------------------------- Name: Daniel P. Casey Title: Executive Vice President AGREED AND ACCEPTED TO: TEMPLE-INLAND INC. By: /s/ Randall D. Levy ------------------------------ Name: Randall D. Levy Title: Chief Financial Officer