EXHIBIT C
May 13, 1999
Unisource Worldwide, Inc.
0000 Xxxxxxx Xxxx
X.X. Xxx 0000-0000
Xxxxxx, XX 00000
Confidentiality Agreement
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Ladies/Gentlemen:
In order to evaluate a possible transaction (the "Proposed Transaction")
between Unisource Worldwide Inc. (the "Disclosing Party") and Georgia-Pacific
Corporation (the "Receiving Party"), the Disclosing Party may disclose and
deliver to the Receiving Party, upon execution and delivery of this letter
agreement, certain information regarding its properties, employees, finances,
businesses, operations, assets and financial affairs. All such information
furnished by the Disclosing Party or its 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". The term Proprietary Information shall
include, without limitation, all data, reports, interpretations, forecasts and
records containing or otherwise reflecting information concerning the Disclosing
Party, its respective affiliates and subsidiaries, whether prepared by such
party or others, and any summaries or other documents created by either party or
others which refer to, relate to, discuss, constitute, or embody all or any
portion of the Proprietary Information. The term Proprietary Information shall
not include, however, information which (a) is or becomes generally available to
the public other than as a result of a disclosure by the Receiving Party or its
Representatives, (b) was available to the Receiving Party on a non-confidential
basis prior to its disclosure by the Disclosing Party or its Representatives,
(c) is independently developed by the Receiving Party without violation of this
letter agreement or (d) becomes available to the Receiving Party on a non-
confidential basis from a person other than the Disclosing Party or its
Representatives who is not, to the Receiving Party's knowledge based on
reasonable
inquiry, otherwise bound by a confidentiality agreement with the Disclosing
Party or any of its Representatives, or is otherwise not, to the Receiving
Party's knowledge based on reasonable inquiry, under an obligation to the
Disclosing Party or any of its Representatives not to transmit the information
to the Receiving Party. As used in this letter agreement, the term
"Representatives" means with respect to any person: (a) the directors of such
person and those of its officers and employees (including officers and employees
of its subsidiaries) who need to know the Proprietary Information for the
purposes of evaluating or negotiating the Proposed Transaction and (b) those
attorneys, advisors, accountants, underwriters, lenders and consultants of such
person who are not officers or employees of such person who need to know the
Proprietary Information for purposes of evaluating or negotiating the Proposed
Transaction, and who agree to keep such information confidential in accordance
with the terms of this letter agreement. The Receiving Party agrees to be
responsible for any breach of this letter agreement by its Representatives.
Subject to the immediately-succeeding paragraph, unless otherwise agreed to
in writing by the Disclosing Party, the Receiving Party agrees:
(a) except as required by law, to keep all Proprietary Information
confidential and not to disclose or reveal any Proprietary Information
to any person other than its Representatives who are actively and
directly participating in the evaluation of the Proposed Transaction;
(b) not to use Proprietary Information for any purpose other than in
connection with its evaluation of the Proposed Transaction or the
consummation of the Proposed Transaction; and
(c) except as required by law or pursuant to the rules of, or a listing
agreement with, any national securities exchange, not to disclose to
any person (other than those of its Representatives who are actively
and directly participating in the evaluation of the Proposed
Transaction) any information about the Proposed Transaction, or the
terms or conditions or any other facts relating thereto, including,
without limitation, the fact that discussions are taking place with
respect thereto, the status thereof or the fact that Proprietary
Information has been made available to the Receiving Party or its
Representatives.
In the event that the Receiving Party is requested pursuant to, or required
by, applicable law, regulation or stock exchange rule, or by legal or regulatory
process, to disclose any Proprietary Information or any other information
concerning the Proposed Transaction, the Receiving Party agrees that it will
provide the Disclosing Party with prompt notice of such request or requirement
in
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order to enable the Disclosing Party to seek an appropriate protective order or
other remedy and to consult with the Receiving Party with respect to the
Disclosing Party 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. In any such event, the Receiving Party will, upon the
request of the Disclosing Party, use its reasonable commercial best efforts to
ensure that all Proprietary Information and other information that is so
disclosed will be accorded confidential treatment and shall furnish only that
portion of the Proprietary Information which it is advised by counsel is legally
required.
The Receiving Party also agrees that for a period of twenty-four months
from the date of this letter agreement, neither it nor any of its controlled
affiliates will, without the prior written consent of the Disclosing Party:
(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 Disclosing Party, or any
subsidiary thereof, or of any successor to, or person in control of,
the Disclosing Party, or any assets of the Disclosing Party, or any
subsidiary or division thereof, or of any such successor or controlling
person other than immaterial asset purchases in the ordinary course of
business and acquisitions of securities in the ordinary course for
investment purposes by pension funds;
(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 Disclosing Party;
(c) 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
(d) otherwise act, alone or in concert with others (including by providing
financing for another party), to seek or offer to control or influence,
in any manner, the management, Board of Directors or policies of the
Disclosing Party.
The Receiving Party covenants and agrees that, during such period, unless and
until such party shall have been specifically invited in writing by the
Disclosing Party, it will not, and will cause each of its affiliates not to,
directly or indirectly, (x) solicit, seek or offer to effect, negotiate with or
provide any information to any
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party with respect to, or (y) make any statement or proposal, whether written or
oral, either alone or in concert with others, to the Board of Directors of the
Disclosing Party, to any director or officer of the Disclosing Party or to any
shareholder of the Disclosing Party, or otherwise make any public announcement
or proposal or offer whatsoever with respect to (i) any form of business
combination or transaction involving the Disclosing Party or any affiliate
thereof, including, without limitation, a merger, exchange offer or liquidation
of the Disclosing Party's assets, (ii) any form of restructuring,
recapitalization or similar transaction with respect to the Disclosing Party or
any affiliate thereof, (iii) any request to waive or terminate the provisions of
this letter agreement or (iv) any proposal or other statement with respect to
the Disclosing Party inconsistent with the terms of this letter agreement, or
instigate or encourage any third party to do any of the foregoing.
The Receiving Party acknowledges that Proprietary Information provided by
the Disclosing Party is and at all times remains, the sole and exclusive
property of the Disclosing Party, and the Disclosing Party has the exclusive
right, title and interest to such Proprietary Information. No right or license,
by implication or otherwise, is granted by the Disclosing Party as a result of
disclosure of Proprietary Information under this letter agreement.
The Receiving Party acknowledges that neither the Disclosing Party nor any
of its Representatives make any express or implied representation or warranty as
to the accuracy or completeness of any Proprietary Information and that the
Receiving Party also agrees that it shall be entitled to rely solely on such
representations and warranties regarding Proprietary Information as may be made
to it in any final agreement relating to the Proposed Transaction subject to the
terms and conditions of such agreement. The Receiving Party agrees that neither
the Disclosing Party nor any of its directors, officers or Representatives shall
have any liability to the Receiving Party or any of its Representatives relating
to or arising from the use of any Proprietary Information by the Receiving Party
or its Representatives or for any errors therein or omissions therefrom except
to the extent liabilities may be created under any definitive agreement executed
by the parties.
This letter agreement binds the parties only with respect to the matters
expressly set forth herein and neither party is bound or committed to negotiate
or consummate the Proposed Transaction unless and until a definitive agreement
on such matters has been executed and delivered on behalf of both parties by
their duly-authorized officers.
If either party hereto determines that it does not wish to proceed with the
Proposed Transaction, it will promptly advise the other party of that decision.
In
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such case or if the Proposed Transaction is not consummated by the Disclosing
Party and the Receiving Party, the Receiving Party will promptly return to the
Disclosing Party all copies of Proprietary Information provided by the
Disclosing Party in its possession or in the possession of any of its
Representatives and will not retain any copies or other reproductions, in whole
or in part, of such material. All other documents, memoranda, notes, summaries,
analyses, extracts, compilations, studies or other material whatsoever prepared
by the Receiving Party or any of its Representatives based on the Proprietary
Information will be destroyed and such destruction will be certified in writing
to the Disclosing Party by an authorized officer supervising such destruction.
Each party is aware, and will advise its Representatives who are informed
of the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the purchase or
sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of such
information to any other person when it is reasonably foreseeable that such
other person is likely to purchase or sell such securities in reliance upon such
information.
The Disclosing Party agrees that, if it delivers the notice referred to in
Section 8.3(a)(iii) of the Agreement and Plan of Merger dated as of February 28,
1999 (the "UGI Agreement") among the Disclosing Party, UGI Corporation ("UGI")
and Vulcan Acquisition Corp. with respect to a Superior Proposal (as defined in
the UGI Agreement) made by a party other than the Receiving Party, the
Disclosing Party will issue a press release regarding the delivery of such
notice. The Disclosing Party further agrees that it will not enter into a
binding written agreement with respect to the Superior Proposal made by such
other party until at least two business days after issuance of the press release
referred to above.
It is understood that the covenants of this letter agreement and the
Proprietary Information disclosed are special, unique and of extraordinary
character. The Disclosing Party may be irreparably harmed by a breach of this
letter agreement, and the use of the Proprietary Information for the business
purposes of any person other than the Disclosing Party may enable such person to
compete unfairly with the Disclosing Party. In the event that the Receiving
Party or its Representatives shall have knowledge of any breach of the
confidentiality of, or the misappropriation of, any of the Proprietary
Information, the Receiving Party shall promptly give notice thereof to the
Disclosing Party. Without prejudice to the rights and remedies otherwise
available to the Disclosing Party, the Disclosing Party shall be entitled to
equitable relief by way of injunction or otherwise if the Receiving Party or any
of its Representatives breach or threaten to breach any of the provisions of
this letter agreement.
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It is further understood and agreed that no failure or delay by the
Disclosing Party 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 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. This letter agreement shall not be assignable
except by operation of law to a successor by merger; provided, however, that
such successor shall be bound by all of the terms of this letter agreement.
The Disclosing Party (i) represents and warrants that this letter agreement
contains terms and conditions no more restrictive to the Receiving Party than
those contained in the Confidentiality Agreement, dated January 20, 1999,
between the Disclosing Party and UGI and (ii) agrees that if the Disclosing
Party enters into a confidentiality agreement with any party relating to a
possible Acquisition Proposal (as defined in the UGI Agreement) and containing
terms and conditions that are less restrictive to the receiving party thereunder
than those contained in this letter agreement, the Disclosing Party shall
promptly provide written notice to the Receiving Party specifying in detail the
content of those less restrictive terms and conditions, in which event this
letter agreement shall be deemed automatically amended to include such less
restrictive terms and conditions.
This letter agreement and the Confidentiality Agreement (the "Other Letter
Agreement") dated as of the date hereof between the Receiving Party and the
Disclosing Party pursuant to which the Receiving Party will provide information
to the Disclosing Party in order to permit the Disclosing Party to evaluate the
Proposed Transaction contain the entire agreement between the Disclosing Party
and the Receiving Party concerning the subject matter hereof and thereof, and no
modification of this letter agreement or the Other Letter Agreement or waiver of
the terms and conditions hereof or thereof shall be binding upon the Disclosing
Party or the Receiving Party, unless approved in writing by each of the parties
hereto.
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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.
GEORGIA-PACIFIC CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and General Counsel
ACCEPTED AND AGREED as of
the date first written above:
UNISOURCE WORLDWIDE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, General Counsel
and Secretary
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