Exhibit 10.11
LOANOUT AGREEMENT
This LOANOUT AGREEMENT, dated as of October 8, 1996 (the
"Agreement"), among Riverwood International Corporation, a Delaware corporation
(the "Company"), Riverwood Holding, Inc., a Delaware corporation ("Holding"),
RIC Holding, Inc., a Delaware corporation ("RIC Holding", and collectively with
the Company and Holding, the "Company Group"), and Xxxxxxx, Dubilier & Rice,
Inc., a Delaware corporation ("CD&R").
W I T N E S S E T H:
WHEREAS, the Company Group and CD&R are parties to a Consulting
Agreement, dated as of March 27, 1996 (the "Consulting Agreement"), among the
Company, Holding, RIC Holding and CD&R, and an Indemnification Agreement, dated
as of March 27, 1996 (the "Indemnification Agreement"), among the Company,
Holding, RIC Holding, CD&R and Xxxxxxx, Dubilier & Rice Fund V Limited
Partnership, a Cayman Islands exempted limited partnership ("CD&R Fund");
WHEREAS, the Company Group desires to obtain the services of Mr. B.
Xxxxxxx Xxxx ("Xxxx"), an employee of CD&R, to perform the functions of Chairman
and acting chief executive officer of each of the Company, Holding and RIC
Holding, and CD&R is willing to make such services available to the Company
Group upon and subject to the terms and conditions hereof; and
WHEREAS, this Agreement has been approved by nine directors of each
of the Company, Holding and RIC Holding, including a majority of the
disinterested directors of the Company, Holding and RIC Holding;
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, the parties hereto hereby agree as follows:
1. Services, etc.
(a) CD&R shall make the services of Xxxx available to the Company
Group and the Company Group shall make use of the services of Xxxx to serve as
Chairman and acting chief executive officer of each of the Company, Holding and
RIC Holding commencing and effective as of October 8, 1996,
until the expiration of the Term (as defined in Section 2 hereof). Xxxx shall be
available to render such services on a part-time basis mutually agreeable to the
Company Group, CD&R and Xxxx. Without limiting the foregoing, Xxxx will continue
to serve as an employee of CD&R and may serve as an officer or director of CD&R
or other corporations and devote such time to performing such services as Xxxx,
in his sole discretion, shall deem appropriate.
(b) The services of Xxxx to be made available to the Company Group
hereunder (the "Services") shall be deemed part of the services provided by CD&R
pursuant to the Consulting Agreement. No separate or additional consideration
shall be payable hereunder for the Services, beyond that payable under the
Consulting Agreement.
2. Term.
(a) This Agreement shall be effective as of October 8, 1996. The
term of this Agreement (the "Term") commenced as of October 8, 1996 and shall
terminate on the earliest to occur of (i) the termination of the Consulting
Agreement in accordance with its terms, (ii) the date that is ten (10) business
days following delivery of written notice of such termination by any party
hereto to the other parties hereto, (iii) the election of a successor Chief
Executive Officer of the Company, Holding or RIC Holding by the Board of
Directors of each such company in accordance with its respective By-laws
thereof, and (iv) Xxxx'x death, permanent disability or resignation from his
employment with CD&R.
(b) The expiration of the Term shall not affect the continuing
effectiveness of the Consulting Agreement (subject to Section 2(a)(i) hereof)
and the Indemnification Agreement, each of which shall continue to be in full
force and effect and enforceable in accordance with its terms. Without limiting
the foregoing, the Company Group shall continue to, and to be obligated to, pay
and reimburse all fees, expenses and other amounts as and when due under the
Consulting Agreement and Indemnification Agreement and perform all its other
obligations thereunder.
3. Indemnification.
All performance by, and all actions or omissions of, CD&R or Xxxx
under or in respect of this Agreement shall be deemed to be pursuant to the
Consulting Agreement, and each of CD&R and Xxxx shall be entitled to the
benefits of
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the indemnification and other provisions of the Consulting Agreement and the
Indemnification Agreement.
4. Independent Contractor Status.
Each of CD&R and the Company Group hereby agree that the furnishing
of Xxxx'x services hereunder by CD&R is solely as an independent contractor,
with CD&R retaining control over and responsibility for its own operations and
personnel, including Xxxx. Neither CD&R nor any of its directors, officers,
employees or agents (including Xxxx) shall, solely by virtue of the Agreement or
the arrangements hereunder, be considered employees, principals, partners,
co-venturers or agents of the Company Group.
5. Notices.
Any notice or other communication required or permitted to be given
or made under this Agreement by one party to the other parties shall be in
writing and shall be deemed to have been duly given and to be effective (i) on
the date of delivery if delivered personally or (ii) when sent if sent by
prepaid telegram, or mailed first-class, postage prepaid, by registered or
certified mail or confirmed facsimile transmission, as follows (or to such
other address as shall be given in writing by one party to the other parties in
accordance herewith):
(a) If to any member of the Company Group, to:
Riverwood International Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to CD&R, to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, III
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
6. General.
(a) Entire Agreement. This Agreement together with the Consulting
Agreement and the Indemnification Agreement (a) contain the complete and entire
understanding and agreement of CD&R and the Company Group with respect to the
subject matter hereof, and (b) supersede all prior and contemporaneous
understandings, conditions and agreements, oral or written, express or implied,
in respect of the subject matter hereof, including but not limited to in respect
of the furnishing of the services of Xxxx in connection with the subject matter
hereof. There are no representations or warranties of Xxxx or CD&R in connection
with this Agreement or the services to be made available hereunder, except as
expressly made and contained in this Agreement.
(b) Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
(c) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
(d) Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and assigns; provided that neither CD&R nor the Company Group may
assign any of its rights or obligations under this Agreement without the express
written consent of the other party hereto.
(e) Governing Law. This Agreement shall be deemed to be a contract
made under, and is to be governed and construed in accordance with, the laws of
the State of New York, without regard to the conflict of laws principles or
rules thereof. Each of the Company Group and CD&R hereby irrevocably submit to
the exclusive jurisdiction of the
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courts of the State of New York and the Federal courts of the United States of
America located in the State, City and County of New York solely in respect of
the interpretation and enforcement of the provisions of this Agreement, and the
parties hereto hereby irrevocably agree that (i) the sole and exclusive
appropriate venue for any action, suit or proceeding relating to such
interpretation and enforcement shall be in such a court, (ii) all claims with
respect to such provisions shall be heard and determined exclusively in such a
court, (iii) any such court shall have exclusive jurisdiction over the person of
such parties and over the subject matter of any dispute relating to such
provisions, and (iv) each hereby waives, and agrees not to assert, any and all
objections and defenses based on forum, venue or personal or subject matter
jurisdiction as they may relate to such an action, suit or proceeding before
such a court in accordance with the provisions of this Section 6(e), provided
that enforcement of a judgment rendered by such a court may be sought in any
court of competent jurisdiction for the enforcement thereof. Each of the Company
Group and CD&R hereby consent to and grant any such court jurisdiction over the
person of such parties and over the subject matter of any such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 5, or in such other manner as may
be permitted by law, shall be valid and sufficient service thereof.
(f) Waiver of Jury Trial. Each party hereto acknowledges and agrees
that any controversy that may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore it hereby irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (ii) it understands
and has considered the implications of this waiver, (iii) it makes this waiver
voluntarily, and (iv) it has been induced to enter into this Agreement by, among
other things, the mutual waivers and certifications contained in this Section
6(f).
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(g) Amendment; Waivers. No amendment, modification, supplement or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought (and in the case of the Company Group, approved by resolution of the
Board of Directors of each of the Company, Holding and RIC Holding). Any such
waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any party hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any party, on one or more
occasions, to enforce any of the provisions of this Agreement or to exercise any
right or privilege hereunder, shall be construed as a waiver of any other breach
or default of a similar nature, or as a waiver of any of such provisions, rights
or privileges hereunder. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that any party may otherwise
have at law or in equity or otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
RIVERWOOD INTERNATIONAL
CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
RIVERWOOD HOLDING, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
RIC HOLDING, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
XXXXXXX, DUBILIER & RICE, INC.
By: /s/ Xxxxxx X. Xxxx, III
------------------------------
Name: Xxxxxx X. Xxxx, III
Title: Chairman and Chief
Executive Officer
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