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EXHIBIT 10.47
IVEX PACKAGING CORPORATION
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into as of
September ____, 1997 among the undersigned holders of the shares of common
stock of Ivex Packaging Corporation, a Delaware corporation (the "Corporation")
and, for certain limited purposes, among such holders and the Corporation as
provided herein.
RECITALS:
The Management Stockholders (as hereinafter defined) are (i) the
owners of the shares of Common Stock of the Corporation set forth in Column 1
on Exhibit A attached hereto, (ii) the owners of the shares of Common Stock of
the Corporation issued in connection with the Corporation's initial public
offering set forth in Column 2 on Exhibit A attached hereto and (iii) the
owners of the options which are exercisable for the number of shares of Common
Stock of the Corporation set forth in Column 3 of Exhibit A attached hereto.
Acadia Partners, L.P. ("Acadia") is the owner of the shares of Common
Stock of the Corporation set forth in Exhibit B attached hereto.
The Management Stockholders and Acadia desire to enter into an
agreement to provide for the continuity of management of the Corporation.
In consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
The following terms shall have the following definitions for the
purposes of this Agreement:
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"Act" means the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission thereunder,
all as the same shall at that time be in effect.
"Board" means the Board of Directors of the Corporation.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Corporation's common stock, par value $.01
per share, as constituted on the date hereof, any stock into which such common
stock shall have been changed or exchanged or any stock resulting from any
reclassification of such common stock and all other stock of any class or
classes (however designated) of the Corporation the holders of which have the
right, without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the payment of
dividends and distributions to any shares entitled to preference.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at that time.
"Going Public Date" means the date that the Corporation first issues
any of its shares of Common Stock pursuant to an underwritten public offering.
"Investor Stockholders" means (i) Acadia Partners, L.P. ("Acadia") or
(ii) the "group" (within the meaning of Section 13(d)(3) of the Exchange Act)
comprised of the direct and indirect general or limited partners of Acadia
having "beneficial ownership" (as defined in Rule 13d-3 of the Exchange Act)
of more than five percent (5.0%) of the outstanding Common Stock of the
Corporation to which Acadia shall have assigned in writing Acadia's rights
under this Agreement (the "Transferee Group", provided, that prior to or
concurrently with such assignment, Acadia shall have delivered written notice
of such assignment to the Corporation. For purposes of determining the number
of shares of Common Stock owned by Acadia and/or the Transferee Group, the
parties hereto shall be entitled to rely on the information set forth in any
schedule or filing made by Acadia and/or the Transferee Group under the
Exchange Act.
"Involuntary Transfer" means any transfer, proceeding or action by or
in which a Management Stockholder shall be deprived or divested of any right,
title or interest in or to any shares of Common Stock, including, without
limitation, (i)
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any seizure under levy of attachment or execution or any foreclosure upon a
pledge of such shares, (ii) any transfer in connection with bankruptcy (whether
pursuant to the filing of a voluntary or an involuntary petition under Title 11
of the United States Code or any modifications or revisions thereto) or other
court proceeding to a debtor in possession, trustee in bankruptcy or receiver
or other officer or agency, (iii) any transfer to a state or to a public
officer or agency pursuant to any statute pertaining to escheat or abandoned
property, (iv) any transfer pursuant to a divorce or separation agreement or a
final decree of a court in a divorce action, (v) any transfer incident to
guardianship or such other similar proceedings upon or occasioned by the
incapacity or incompetence of the Management Stockholder, or (vi) any transfer
upon the death of a Management Stockholder through testamentary disposition or
under the laws of intestate succession.
"Management Stockholders" means the senior management of the
Corporation identified on Exhibit A attached hereto and any Permitted
Transferees thereof; provided, however, that (x) any person (including a
Permitted Transferee) that acquires shares of Common Stock in connection with
an Involuntary Transfer shall not be a Management Stockholder hereunder, (y) no
person (including a Permitted Transferee) shall be a Management Stockholder
after the date on which such person (or in the case of a Permitted Transferee,
the transferor Management Stockholder) is no longer employed by, or under a
consulting arrangement with, the Corporation, and (z) no Permitted Transferee
shall be a party hereto after it ceases to own any shares of Common Stock.
"Permitted Transferee" means (x) the spouse or any lineal ancestor or
descendant of a Management Stockholder or (y) any partnership or trust
established by a Management Stockholder solely for the benefit of any of the
foregoing over which such Management Stockholder retains voting or investment
power.
"Shares" means (i) the issued and outstanding shares of Common Stock
owned by the Management Stockholders as described in Columns 1 and 2 on Exhibit
A hereto, (ii) the shares of Common Stock set forth in Column 3 on Exhibit A
hereto issuable to the Management Stockholders upon the exercise by the
Management Stockholders of the options exercisable for such shares, (iii) the
issued and outstanding shares of Common Stock owned by Acadia as described on
Exhibit B hereto, (iv) the issued and outstanding shares of Common Stock owned
by the Transferee Group from time to time, and (v) all shares of Common Stock
hereafter acquired by any such Stockholder, including all shares of Com-
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mon Stock issued or issuable as a result of any stock dividend on, or stock
split or reclassification or conversion of, or in exchange for, any such Common
Stock.
"Stockholders" means the Investor Stockholders and the Management
Stockholders.
2. Election of Directors.
During the term of this Agreement, each Stockholder agrees to
use its best efforts from time to time (including, without limitation, voting
its Shares, calling special meetings of the stockholders of the Corporation and
executing and delivering written consents, as appropriate) to cause the
following:
2.1 The Board of Directors of the Corporation shall consist
of six (6) members (nine (9) members if the Investor Stockholders increase the
size of the Board pursuant to Section 2.1.3(b) hereof) which, effective as of
the Going Public Date, shall be divided into three (3) classes -- Class I,
Class II, and Class III, which shall be as nearly equal in number as possible.
2.2 Each Director shall serve a term ending on the third
(3rd) annual meeting following the annual meeting at which such director was
elected, provided, however, that (i) each Director first elected to Class I
shall hold office until the annual meeting of stockholders in 1998, (ii) each
Director first elected to Class II shall hold office until the annual meeting
of stockholders in 1999, and (iii) each Director first elected to Class III
shall hold office until the annual meeting of stockholders in 2000.
2.3 (a) During the period of time that Acadia (or the
Transferee Group, as the case may be) owns twelve and one-half percent (12.5%)
or more of the fully-diluted outstanding Common Stock of the Corporation, two
of the Directors of the Corporation (including those named to any vacancies
caused by the resignation, removal or death of directors), consisting of one
Director in Class II and one Director in Class III, shall be persons designated
by Acadia (or by the holders of a majority of the outstanding shares of Common
Stock held by the Transferee Group, as the case may be).
(b) In addition, during the period of time that
Acadia (or the Transferee Group, as the case may be) owns (i) twenty percent
(20.0%) or more of the fully-diluted outstanding Common Stock of the
Corporation, Acadia (or the holders of a majority of the outstanding shares of
Common Stock held by
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the Transferee Group, as the case may be) shall have the right at any time to
act by written consent or otherwise to increase the size of the Board of
Directors from six members to nine members and designate three (3) additional
Directors of the Corporation (one of which shall serve in each of Class I,
Class II and Class III), such three Directors to be in addition to any
directors designated pursuant to Section 2.1.3(a) hereof, and (ii) twelve and
one-half percent (12.5%) or more of the fully-diluted outstanding Common Stock
of the Corporation, Acadia (or the holders of a majority of the outstanding
shares of Common Stock held by the Transferee Group, as the case may be) shall,
in the event that for any reason the Board of Directors consists of nine or
more members, have the right at any time to designate one additional Director
of the Corporation, such Director to be in addition to any directors nominated
pursuant to Section 2.1.3(a) hereof.
(c) During the period of time that Acadia (or the
Transferee Group, as the case may be) owns less than twelve and one-half
percent (12.5%) of the fully-diluted Common Stock of the Corporation but five
percent (5%) or more of the fully-diluted Common Stock of the Corporation, one
of the Directors of the Corporation (including a director named to any vacancy
caused by the resignation, removal or death of directors) shall be a person
designated by Acadia (or by holders of a majority of the outstanding shares of
Common Stock held by the Transferee Group, as the case may be).
During the period of time that the Management Stockholders own
seven and one-half percent (7.5%) or more of the fully-diluted outstanding
Common Stock of the Corporation, two of the Directors of the Corporation
(including those named to any vacancies caused by the resignation, removal or
death of directors), consisting of one Director in Class I and one Director in
Class III, shall be persons nominated by Xxxxxx X. Xxxxx on behalf of the
Management Stockholders, and during the period of time that the Management
Stockholders own less than seven and one-half percent (7.5%) of the
fully-diluted Common Stock of the Corporation but five percent (5.0%) or more
of the fully-diluted Common Stock of the Corporation, one of the Directors of
the Corporation (including those named to any vacancies caused by the
resignation, removal or death of directors) shall be a person designated by
Xxxxxx X. Xxxxx on behalf of the Management Stockholders.
During the term of this Agreement, two of the Directors of the
Corporation (who shall be free of any relationship that would interfere with
the exercise of their independent judgment as Directors as provided in Section
2.1.5 hereof), consisting of one Director in Class I and one Director in Class
II, shall
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be persons mutually acceptable to, and designated by, Xxxxxx X. Xxxxx on behalf
of the Management Stockholders and Acadia (or the holders of a majority of the
outstanding shares of Common Stock held by the Transferee Group, as the case
may be).
2.4 If Xxxxxx X. Xxxxx ceases to be the Chief Executive
Officer of the Corporation for any reason, then the Directors to be designated
on behalf of the Management Stockholders shall be designated by Xxxxxx X.
Xxxxx'x successor as Chief Executive Officer, unless Management Stockholders
then employed by the Corporation holding a majority of the Shares then held by
all such Management Stockholders (for which purpose, such Management
Stockholders shall be deemed to hold the shares issuable upon the exercise of
any vested options) select a different person to make such designation (which
person shall be a Management Stockholder then employed by the Corporation).
2.5 Notwithstanding anything in this Agreement to the
contrary, at all times commencing promptly after the Going Public Date, there
shall be at least two Directors who, in the view of the Board of Directors, are
free of any relationship that would interfere with the exercise of their
independent judgment as Directors (each, an "Independent Director"). If at any
time there is not at least two Independent Directors or designees to be
Directors hereunder about whom the Board of Directors has such a view, Acadia
(or the holders of a majority of the outstanding shares of Common Stock held by
the Transferee Group, as the case may be) and Xxxxxx X. Xxxxx on behalf of the
Management Stock- holders shall mutually agree upon the nomination of any such
Independent Director. If such persons shall be unable to agree upon the
nomination of any such Independent Director, the Board of Directors shall, by
the vote of a majority of the Directors, elect an Independent Director.
3. Specific Performance. The parties agree that the parties
hereto will be irreparably damaged in the event that this Agreement is not
specifically enforced. In the event of a breach or threatened breach of the
terms, covenants and/or conditions of this Agreement by any of the parties
hereto, the other parties shall, in addition to all other remedies, be entitled
(without any bond or other security being required) to a temporary and/or
permanent injunction without showing any actual damage or that monetary damages
would not provide an adequate remedy, and/or a decree for specific performance,
in accordance with the provisions hereof.
4. Miscellaneous.
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(a) Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with
the internal laws of the State of Delaware without regard to principles of
conflicts of law. Each of the parties hereto agrees that any legal action
between the parties relating to the entry into or performance of this
Agreement, or the interpretation or enforcement of the terms hereof, shall
exclusively be brought in a federal or state court located in the New Castle
County, Delaware, having jurisdiction of the subject matter thereof, and each
party irrevocably consents to personal jurisdiction in any such federal or
state court, waives any right to object to such venue or to assert the defense
of forum non-conveniens, and agrees that service of complaint or other process
may be made by certified or registered mail addressed to such party at its
address set forth in, or determined in accordance with, Section 4(h) hereof.
(b) Entire Agreement; Amendments. This writing
constitutes the entire agreement of the parties with respect to the subject
matter hereof and may not be modified or amended except by a written agreement
signed by (i) Acadia (or the holders of at least a majority of the outstanding
shares of Common Stock held by the Transferee Group, as the case may be) on the
date of such amendment or modification, and (ii) the holders of at least a
majority of the outstanding shares of Common Stock held by the Management
Stockholders on the date of such amendment or modification. Notwithstanding
anything in this Agreement to the contrary, any modification or amendment of
this Agreement by a written agreement signed by, or binding upon, a Stockholder
shall be valid and binding upon any and all persons or entities who may in
accordance with the terms of this Agreement, at any time, have rights under or
pursuant to this Agreement in respect of the Shares.
(c) Waiver. No waiver of any breach or default
hereunder shall be considered valid unless in writing, and no such waiver shall
be deemed a waiver of any subsequent breach or default of the same or similar
nature.
(d) Assignments; Successors and Assigns. Except as
provided in this Agreement, this Agreement shall not be assigned by any of the
parties hereto and this Agreement is not intended to confer upon any other
person except the Investor Stockholders and the Management Stockholders any
rights or obligations hereunder.
(e) Severability. If any provision of this
Agreement shall be invalid or unenforceable, such invalidity or
unenforceability shall attach only
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to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable
provision was not contained herein.
(f) Further Assurances. Each party here to shall
cooperate and shall take such further action and shall execute and deliver such
further documents as may be reasonably requested by any other party in order to
carry out the provisions and purposes of this Agreement.
(g) Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
(h) Notices. All notices or other communications
provided for herein shall be in writing and shall be deemed duly given and
received (i) on the third (3rd) full business day following the day of the
mailing thereof by registered or certified mail, return receipt requested, or
(ii) on the first (1st) business day following the day of delivery to a
reputable over-night air courier service, or (iii) on the day delivered
personally at the address listed below a Stockholder's signature, or at such
other place as the Stockholder shall have designated by notice as herein
provided.
(i) Recalcitrant Holder. If any holder of Common
Stock who is required to take any action pursuant hereto fails to take the
action required within the prescribed time period, or, if no time period is
prescribed, within twenty-four (24) hours of written demand that such action be
taken, then the other Stockholders may take any such action on behalf of such
holder and such action shall be deemed to have been taken by such holder. Each
holder of Common Stock hereby irrevocably appoints the other stockholders as
his, her or its agent and proxy to take any such action on behalf of such
holder (including, without limitation, to execute and deliver one or more
written consents), and acknowledges that the agency and proxy relationship
created hereby is irrevocable and coupled with an interest.
(j) Term of Agreement. This Agreement shall
continue in full force and effect until the earlier to occur of (a) the tenth
(10th) anniversary of the date hereof, (b) the date that Acadia holds
"beneficial ownership" (as defined in Rule 13d-3 of the Exchange Act) of less
than five percent (5.0%) of the fully-diluted outstanding shares of Common
Stock of the Corporation if, on or prior to
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such date, the Transferee Group has not assumed in writing Acadia's obligations
hereunder, (c) the date that the Transferee Group holds "beneficial ownership"
(as defined in Rule 13d-3 of the Exchange Act) of less than five percent (5.0%)
of the fully-diluted outstanding shares of Common Stock of the Corporation, or
(d) a mutually acceptable termination date set forth in a written agreement
between Acadia (or the Transferee Group, as the case may be) and the holders of
at least a majority of the outstanding shares of Common Stock held by the
Management Stockholders.
Transferability of Shares. Nothing herein contained shall restrict
the right of any Stockholder to transfer such Stockholder's Shares.
5. Agreements of the Corporation. The Corporation hereby agrees
that upon receiving notice from any stockholder that such stockholder intends
to take action pursuant to Section 2 by written consent, it shall take all such
actions as may be required to permit such action to be so taken, including,
without limitation, the preparation and distribution of an information
statement pursuant to Regulation 14C of the Securities Exchange Act of 1934 and
the filing thereof with the Securities and Exchange Commission. The
Corporation hereby acknowledges that the power and authority granted by Section
4(i) is irrevocable and coupled with an interest.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Stock Purchase Agreement as of the date first above written.
MANAGEMENT STOCKHOLDERS
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Name: Xxxxxx X. Xxxxx
Title: President & Chief Executive Officer
Address:
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Name: Xxxxxxx X. Xxxx
Title: Vice President & Treasurer
Address:
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Name: Xxxxxx X. Xxxxxx
Title: Vice President & General Manager
Address:
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President & General Manager
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Address:
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address:
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address:
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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Address:
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President Human Resources
Address:
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Name: G. Xxxxxxx Xxxxxxxxx
Title: Vice President & General Counsel
Address:
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Name: Xxxxx X. Xxxxxxx
Title: Vice President & Chief Financial
Officer
Address:
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and General
Manager
Address:
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INVESTOR STOCKHOLDERS:
ACADIA PARTNERS, L.P.
By: Acadia FW Partners, L.P.,
its General Partner
By: Acadia MGP, Inc., its Managing
General Partner
By:
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Name:
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Title:
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Address:
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Solely for purposes of Section 5 hereof:
IVEX PACKAGING CORPORATION
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By:________________________________________
Name:
Title:
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EXHIBIT A
LIST OF MANAGEMENT STOCKHOLDERS
OF
IVEX PACKAGING CORPORATION
Column 1 Column 2 Column 3
-------- -------- --------
Number of
Shares of
Common Stock
Number of Number of Issuable upon
Shares of Shares of Exercise
Name Title Common Stock Common Stock of Options
---- ----- ------------ ------------ ----------
X.X. Xxxxx Pres./CEO
X. Xxxx VP/Treas.
X.X. Xxxxxx VP/GM
X.X. Xxxxxxxxx VP/GM
X.X. Xxxxxxx Vice Pres.
X.X. Xxxxxxx Vice Pres.
X.X. Xxxxxx Vice Pres.
X.X. Xxxxxxxx Vice Pres.
X.X. Xxxxxxxx Vice Pres.
X.X. Xxxxxxxxx VP/GC
X.X. Xxxxxxx VP/CFO
X.X. Xxxxxxxx VP/GM
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EXHIBIT B
LIST OF INVESTOR STOCKHOLDERS
OF
IVEX PACKAGING CORPORATION
Number of
Name Outstanding Shares\
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Acadia Partners, L.P.
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