EXHIBIT 99.4
EXECUTION COPY
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VOTING AGREEMENT
DATED AS OF MARCH 25, 2003
BETWEEN
RIVERWOOD HOLDING, INC.
AND
THE FAMILY STOCKHOLDERS
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VOTING AGREEMENT, dated as of March 25, 2003, between RIVERWOOD HOLDING,
INC., a Delaware corporation ("RIVERWOOD"), and the persons listed on signature
pages hereof (each, a "FAMILY STOCKHOLDER" and, collectively, the "FAMILY
STOCKHOLDERS").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Family Stockholder owns the number of shares of 10% Series B
Convertible Preferred Stock, stated value $100.00 per share, of Graphic
Packaging International Corporation, a Colorado corporation (the "COMPANY") (the
"SERIES B PREFERRED STOCK"), and of Common Stock, par value $0.01 per share, of
the Company (including any common stock into which such Series B Preferred Stock
may be converted or exchanged after the date hereof, the "COMMON STOCK") set
forth opposite such Family Stockholder's name on Schedule A hereto (such shares
of Common Stock and Series B Preferred Stock, together with any other shares of
capital stock of the Company acquired by any Family Stockholder after the date
hereof and during the term of this Agreement, being collectively referred to
herein as the "SUBJECT SHARES");
WHEREAS, concurrently with the execution and delivery of this Agreement,
Riverwood and the Company are entering into an Agreement and Plan of Merger (as
the same may from time to time be modified, supplemented or restated, the
"MERGER AGREEMENT") providing for the merger of the Company with and into a
subsidiary of Riverwood (the "MERGER") upon the terms and subject to the
conditions set forth therein;
WHEREAS, concurrently with the execution and delivery of this Agreement,
Riverwood, certain stockholders of Riverwood and the Family Stockholders are
entering into a Stockholders Agreement (as the same may from time to time be
modified, supplemented or restated, the "STOCKHOLDERS AGREEMENT") with the
Company, governing certain of the rights, duties and obligations of the parties
thereto relating to their ownership of stock of the Company following the
Merger, such agreement to become effective immediately upon the Effective Time
(as defined in the Merger Agreement);
WHEREAS, as a condition and inducement to the Company's willingness to
enter into the Merger Agreement, certain stockholders of Riverwood (the
"RIVERWOOD STOCKHOLDERS") have given their written consent, dated as of the date
hereof, in the form of Exhibit 1(a) to the Merger Agreement, pursuant to which
the Riverwood Stockholders have approved, among other things, the adoption of
the Merger Agreement; and
WHEREAS, as a condition and inducement to Riverwood's willingness to enter
into the Merger Agreement, the Family Stockholders desire to enter into this
Agreement, pursuant to which (I) the Family Stockholders are agreeing, among
other things, to vote their shares of Common Stock and Series B Preferred Stock
in favor of the adoption of
the Merger Agreement and, at the Closing (as defined in the Merger Agreement),
to convert their shares of Series B Preferred Stock into Common Stock, and (ii)
Riverwood is agreeing to make a monetary payment to the Family Stockholders in
consideration of such conversion.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby, the parties agree as
follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF EACH FAMILY STOCKHOLDER
Each Family Stockholder, severally and not jointly, represents and
warrants to Riverwood as follows:
Section 1.1 AUTHORITY. Such Family Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by such Family Stockholder and constitutes a valid and binding
obligation of such Family Stockholder enforceable in accordance with its terms.
If such Family Stockholder is married and the Subject Shares of such Family
Stockholder constitute community property or otherwise need spousal or other
approval for this Agreement to be legal, valid and binding with respect to such
Subject Shares, this Agreement has been duly executed and delivered by, and
constitutes a valid and binding agreement of, such Family Stockholder's spouse,
enforceable against such spouse in accordance with its terms. If such Family
Stockholder is a trust, no consent of any beneficiary is required for the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
Section 1.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will violate, conflict with or result in a breach, or constitute a
default (with or without due notice of lapse of time or both) under any
provision of, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to such Family Stockholder or to such Family
Stockholder's property or assets.
(b) The execution and delivery of this Agreement by such Family
Stockholder do not, and the performance of this Agreement by such Family
Stockholder
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will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Entity (as defined in the Merger
Agreement), except (I) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not,
individually or in the aggregate, prevent or materially delay the performance by
such Family Stockholder of any of his obligations under this Agreement and (II)
that the Family Stockholders shall be required to make an appropriate report
pursuant to the HSR Act (as defined in the Merger Agreement) with respect to the
transactions contemplated by the Merger Agreement.
Section 1.3 THE SUBJECT SHARES. Such Family Stockholder is the record and
beneficial owner of, or is a trust that is the record holder of and whose
beneficiaries are the beneficial owners of, and has good and marketable title
to, the Subject Shares set forth opposite such Family Stockholder's name on
Schedule A hereto, free and clear of any mortgage, lien, pledge, charge,
encumbrance, security interest or other adverse claim. Such Family Stockholder
does not own, of record or beneficially, any shares of capital stock of the
Company other than the Subject Shares set forth opposite such Family
Stockholder's name on Schedule A hereto. Such Family Stockholder has the sole
right to vote, or to dispose, of such Subject Shares, and none of such Subject
Shares is subject to any agreement, arrangement or restriction with respect to
the voting of such Subject Shares, except as contemplated by this Agreement or
the Stockholders Agreement. There are no agreements or arrangements of any kind,
contingent or otherwise, obligating such Family Stockholder to sell, transfer,
assign, grant a participation interest in, option, pledge, hypothecate or
otherwise dispose or encumber (each, a "TRANSFER"), or cause to be Transferred,
any of the Subject Shares, and no Person (as defined in the Merger Agreement)
has any contractual or other right or obligation to purchase or otherwise
acquire any of the Subject Shares.
Section 1.4 RELIANCE BY RIVERWOOD. Such Family Stockholder understands and
acknowledges that Riverwood is entering into the Merger Agreement in reliance
upon such Family Stockholder's execution and delivery of this Agreement.
Section 1.5 LITIGATION. There is no action, proceeding or investigation
pending or threatened against such Family Stockholder that questions the
validity of this Agreement or any action taken or to be taken by such Family
Stockholder in connection with this Agreement.
Section 1.6 FINDER'S FEES. No broker, investment bank, financial advisor
or other person is entitled to any broker's finder's, financial adviser's or
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Family Stockholders.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF RIVERWOOD
Riverwood represents and warrants to each of the Family Stockholders as
follows:
Section 2.1 AUTHORITY. Riverwood has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by
Riverwood and constitutes a valid and binding obligation of Riverwood
enforceable in accordance with its terms.
Section 2.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will violate, conflict with or result in a breach, or constitute a
default (with or without due notice of lapse of time or both) under any
provision of, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to Riverwood or to Riverwood's property or assets.
(b) The execution and delivery of this Agreement by Riverwood does
not, and the performance of this Agreement by Riverwood will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity (as defined in the Merger Agreement), except where
the failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not, individually or in the aggregate,
prevent or materially delay the performance by Riverwood of any of its
obligations under this Agreement.
ARTICLE III
VOTING OF SUBJECT SHARES
Section 3.1 AGREEMENT TO VOTE. From the date hereof, and until the
termination of this Agreement in accordance with Section 6.1, each Family
Stockholder, severally and not jointly, and subject to the provisions of Section
5.1, agrees as follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
each Family
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Stockholder shall vote (or cause to be voted) the Subject Shares (and each class
thereof) in favor of the adoption by the Company of the Merger and the approval
of the Merger Agreement and, subject to Section 4.4, any actions required in
furtherance thereof and each of the transactions contemplated by the Merger
Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval of all or some of the stockholders of the Company is sought, each
Family Stockholder shall vote (or cause to be voted) its Subject Shares (and
each class thereof) against (I) any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, combination, sale or transfer
of a material amount of assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company, and (II) any amendment of the
Company's certificate of incorporation or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries, which amendment or
other proposal or transaction would in any manner delay, impede, frustrate,
prevent or nullify the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement or change in any manner the
voting rights of the Subject Shares other than in connection with the
transactions contemplated by the Merger. Each Family Stockholder further agrees
not to commit or agree to take any action inconsistent with the foregoing.
Section 3.2 NO SOLICITATION OF TRANSACTIONS. Subject to the terms of
Section 5.1, none of the Family Stockholders nor any of their affiliates shall,
directly or indirectly, and each Family Stockholder will instruct his agents,
advisors and other representatives (including without limitation, any investment
banker, attorney or accountant retained by it) not to, directly or indirectly,
initiate, solicit, encourage or facilitate (including by way of furnishing
information) any inquiries or proposals regarding any Acquisition Proposal (as
defined in the Merger Agreement). Each Family Stockholder and each of his
agents, advisors and other representatives shall immediately cease and cause to
be terminated any existing discussions or negotiations with any person (other
than Riverwood) conducted heretofore with respect to any of the foregoing. Each
Family Stockholder shall promptly advise Riverwood orally and in writing of (X)
any proposal for an Acquisition Proposal or any request for information with
respect to any proposal for an Acquisition Proposal received by such Family
Stockholder or any of his agents, advisors or other representatives, the
material terms and conditions of such proposal for an Acquisition Proposal or
request and the identity of the person making such proposal for an Acquisition
Proposal or request (and provide Riverwood with copies of any written proposal
for an Acquisition Proposal or amendments or supplements thereto) and (Y) any
changes in any such proposal for an Acquisition Proposal or request.
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ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1 NO DISPOSITION OR ENCUMBRANCE OF SUBJECT SHARES. Except as
provided in the next to the last sentence of this Section 4.1, each Family
Stockholder agrees not to, directly or indirectly, (I) Transfer or enter into
any agreement, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares to any Person,
other than in accordance with the Merger Agreement or (II) grant any proxies,
deposit any Subject Shares into any voting trust or enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, with respect to
the Subject Shares, other than pursuant to this Agreement. Subject to the next
to the last sentence of this Section 4.1, each Family Stockholder further agrees
not to commit or agree to take any of the foregoing actions. Notwithstanding the
foregoing, each Family Stockholder shall have the right to Transfer its Subject
Shares to a Permitted Transferee (as defined in this Section 4.1) of such Family
Stockholder if and only if such Permitted Transferee shall have agreed in
writing, in a manner reasonably acceptable in form and substance to Riverwood,
(I) to accept such Subject Shares subject to the terms and conditions of this
Agreement and (ii) to be bound by this Agreement and to agree and acknowledge
that such Person shall constitute a Family Stockholder for all purposes of this
Agreement. "PERMITTED TRANSFEREE" means, with respect to any Family Stockholder,
(A) any other Family Stockholder, (B) a spouse or lineal descendant (whether
natural or adopted), sibling, parent, heir, executor, administrator,
testamentary trustee, lifetime trustee or legatee of such Family Stockholder or
Xxxxxx Xxxxx, Xx., (C) any trust, the trustees of which include only the Persons
named in clause (A) or (B) and the beneficiaries of which include only the
Persons named in clause (A) or (B), (D) any corporation, limited liability
company or partnership, the stockholders, members or general or limited partners
of which include only the Persons named in clause (A) or (B), or (E) if such
Family Stockholder is a trust, the beneficiary or beneficiaries authorized or
entitled to receive distributions from such trust.
Section 4.2 DISCLOSURE. Each of the Family Stockholders hereby permits
Riverwood to publish and disclose in the Registration Statement of Riverwood to
be filed on Form S-4 with respect to the Merger and all documents and schedules
filed with the SEC in connection therewith, such Family Stockholder's identity
and ownership of the Subject Shares and, with the prior approval of the Family
Representative, the nature of such Family Stockholder's commitments,
arrangements and understandings under this Agreement.
Section 4.3 WAIVER OF APPRAISAL RIGHTS. Each of the Family Stockholders
hereby waives any rights of appraisal or rights to dissent from the Merger that
it may have under Article 113 of the Colorado Business Corporation Act (the
"CBCA").
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Section 4.4 REASONABLE EFFORTS. Each Family Stockholder shall use all
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable, the Merger and the other transactions
contemplated by the Merger Agreement, and to carry out the intent and purposes
of this Agreement; PROVIDED, HOWEVER, that this Section 4.4 shall not require
the Family Stockholders to interfere with the composition or actions of the
Company's Board of Directors or to acquire additional securities nor provide
financing to the Company.
Section 4.5 FAMILY REPRESENTATIVE. Each Family Stockholder hereby
designates and appoints (and each Permitted Transferee of each such Family
Stockholder is hereby deemed to have so designated and appointed) Xxxxxxx X.
Xxxxx and, in the case of his inability to act, Xxxxxxx X. Xxxxx (the "FAMILY
REPRESENTATIVE"), as its attorney-in-fact with full power of substitution for
each of them, to serve as the representative of such Family Stockholder to
perform all such acts as are required, authorized or contemplated by this
Agreement to be performed by such Family Stockholder (including the voting of
the Subject Shares in accordance with Sections 3.1(a) and (b)), and hereby
acknowledges that the Family Representative shall be authorized to take any
action so required, authorized or contemplated by this Agreement. Each such
Family Stockholder further acknowledges that the foregoing appointment and
designation shall be deemed to be coupled with an interest and shall survive the
death or incapacity of such Family Stockholder. Each such Family Stockholder
hereby authorizes (and each such Permitted Transferee of such Family Stockholder
shall be deemed to have authorized) the other parties hereto to disregard any
notices or other action taken by such Family Stockholder pursuant to this
Agreement, except for notices and actions taken by the Family Representative.
Riverwood is and will be entitled to rely on any action so taken or any notice
given by any Family Representative and is and will be entitled and authorized to
give notices only to the Family Representative for any notice contemplated by
this Agreement to be given to any such Family Stockholder. A successor to the
Family Representative may be chosen by the holders of a majority of the shares
held by the Family Stockholders; PROVIDED that notice thereof is given by the
new Family Representative to Riverwood.
Section 4.6 IRREVOCABLE PROXY. Notwithstanding the generality of Section
4.5, each Family Stockholder hereby constitutes and appoints the Family
Representative with full power of substitution, as the proxy pursuant to the
provisions of Article 107 of the CBCA and attorney of such Family Stockholder,
and hereby authorizes and empowers the Family Representative to represent, vote
and otherwise act (by voting at any meeting of the stockholders of the Company,
by written consent in lieu thereof or otherwise) with respect to the Subject
Shares owned or held by such Family Stockholder regarding the matters referred
to in Sections 3.1(a) and (b) until the termination of this Agreement, to the
same extent and with the same effect as such Family Stockholder might or could
do under applicable law, rules and regulations. The proxy granted pursuant to
the
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immediately preceding sentence is coupled with an interest and shall be
irrevocable. Each Family Stockholder hereby revokes any and all previous proxies
or powers of attorney granted with respect to any of the Subject Shares owned or
held by such Family Stockholder regarding the matters referred to in Sections
3.1(a) and (b).
Section 4.7 CONVERSION OF PREFERRED.
(a) At the Closing and immediately prior to the Effective Time (as
such terms are defined in the Merger Agreement), the Xxxxxx X. Coors Trust
shall convert all of the shares of Series B Preferred Stock held by such
trust into shares of Common Stock in accordance with the terms of the
Articles of Incorporation of the Company as amended by the Company's Board
of Directors on August 14, 2000 (the "SHARE Conversion").
(b) In consideration of the Share Conversion, promptly after such
conversion Riverwood shall pay by wire transfer, to an account or accounts
specified by not less than three days' notice from the Family
Representative to Riverwood, funds in an amount equal to the present
value, calculated using a discount rate of 8.5%, of the dividend payments
payable to the Series B Preferred Stock from the Effective Time of the
Merger through the first date as of which the Company may redeem the
Series B Preferred Stock.
Section 4.8 ADDITIONAL CONSIDERATION.
(a) In the event that the Merger Agreement shall have been terminated
under circumstances where Riverwood is entitled to receive the Termination Fee
(as defined in and in accordance with the Merger Agreement), each Family
Stockholder shall pay to Riverwood, on demand, an amount equal to such Family
Stockholder's pro rata share (based on the number of subject shares held by such
stockholder on the date hereof, treating the Series B Preferred Stock on an as
converted basis) of (I) 75% of the first $20 million of all Profit (as defined
in Section 4.8(b)) earned by the Family Stockholders, collectively, and (II) 50%
of the next $40 million of all Profit earned by the Family Stockholders,
collectively, in each case from the consummation of any Business Combination (as
defined in the Merger Agreement) that is consummated within two years of such
termination.
(b) For purposes of this Section 4.8, the "PROFIT" of the Family
Stockholders, collectively, from any Business Combination shall equal (I) the
aggregate consideration received by the Family Stockholders pursuant to such
Business Combination, valuing any non-cash consideration (including any residual
interest in the Company) at its Fair Market Value on the date of the
consummation of the Business Combination PLUS (II) the Fair Market Value,
determined as of the date of disposition, of all Subject Shares of the Family
Stockholders disposed of after the termination of the Merger Agreement and prior
to the date of the consummation of the Business Combination MINUS (III) the Fair
Market Value of all Subject Shares of the Family
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Stockholders, determined as of (X) the day immediately prior to date of the
Merger Agreement or (Y) the day immediately prior to the date that the Company
first receives notice of or otherwise becomes aware of an Acquisition Proposal
(as defined in the Merger Agreement), whichever date of determination yields a
lower Fair Market Value.
(c) In the event that (I) prior to the Effective Time, a Superior
Proposal shall have been made and (II) the Effective Time of the Merger shall
have occurred and Riverwood for any reason shall have increased the amount of
the Merger Consideration (as defined in the Merger Agreement) payable over that
set forth in the Merger Agreement in effect on the date hereof, the Family
Stockholders hereby agree that they will not be entitled to receive, and shall
waive any right to receive, 50% of any such additional Merger Consideration that
would otherwise have been received by the Family Stockholders, and that the full
amount of any such additional Merger Consideration shall be payable by Riverwood
only with respect to shares of the Common Stock held by Persons other than the
Family Stockholders.
(d) For purposes of this Section 4.8, the Fair Market Value of any
non-cash consideration consisting of:
(i) securities listed on a national securities exchange or traded
on the NASDAQ/NMS shall be equal to the average closing price
per share of such security as reported on such exchange or the
NASDAQ/NMS for the ten trading days prior to the date of
determination; and
(ii) consideration which is other than cash or securities of the
form specified in clause (i) of this Section 4.8(d) shall be
determined by a nationally recognized independent investment
banking firm mutually agreed upon by the parties within 10
business days of the event requiring selection of such
banking firm; PROVIDED, HOWEVER, that if the parties are
unable to agree within two business days after the date of
such event as to the investment banking firm, then the
parties shall each select one firm, and those firms shall
select a third investment banking firm, which third firm
shall make such determination; PROVIDED FURTHER, that the
fees and expenses of such investment banking firm shall be
borne equally by Riverwood, on the one hand, and the Family
Stockholders, on the other hand. The determination of the
investment banking firm shall be binding upon the parties.
(e) Any payment of profit under this Section 4.8 shall (I) if paid in
cash, be paid by wire transfer of same day funds to an account designated by
Riverwood and (II) if paid through transfer of freely tradeable securities, be
paid through delivery of such securities, suitably endorsed for transfer.
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ARTICLE V
STOCKHOLDER CAPACITY
Section 5.1 STOCKHOLDER CAPACITY. No Person executing this Agreement who
is or becomes during the term hereof a director or officer of the Company shall
be deemed to make any agreement or understanding in this Agreement in such
Person's capacity as a director or officer. Each Family Stockholder is entering
into this Agreement solely in its capacity as the record holder or beneficial
owner of, or the trustee of a trust whose beneficiaries are the beneficial
owners of, such Family Stockholder's Subject Shares and nothing herein shall
limit or affect any actions taken by a Family Stockholder in its capacity as a
director or officer of the Company to the extent specifically permitted by the
Merger Agreement or following the termination of the Merger Agreement.
ARTICLE VI
TERMINATION
Section 6.1 TERMINATION. This Agreement shall terminate upon the earlier
of (x) the Effective Time and (Y) the termination of the Merger Agreement in
accordance with its terms, except that (I) the provisions of Section 4.8 of this
Agreement shall survive any such termination and (II) a termination of this
Agreement shall not relieve any party from liability for any breach hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1 ADDITIONAL SHARES. In the event any Family Stockholder becomes
the legal or beneficial owner of any additional shares or other securities of
the Company (the "ADDITIONAL SECURITIES"), any securities into which such shares
or securities may be converted or exchanged and any securities issued in
replacement of, or as a dividend or distribution on, or otherwise in respect of,
such shares or securities, then the terms of this Agreement shall apply to such
securities. Each Family Stockholder agrees not to purchase or in any other
manner acquire any Additional Securities, except for (X) the purchase or other
acquisition pursuant to Section 4.1 of Common Stock or Series B Preferred Stock
that is held by another Family Stockholder as of the date hereof and (Y) with
respect to any Family Stockholder who is an employee of the Company, pursuant to
a Company Benefit Plan (as defined in the Merger Agreement).
Section 7.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to
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its principles or rules of conflicts of laws to the extent that such principles
or rules would require or permit the application of the law of another
jurisdiction.
Section 7.3 JURISDICTION. Each of the parties hereto irrevocably and
unconditionally (I) agrees that any legal suit, action or proceeding brought by
any party hereto arising out of or based upon this Agreement or the transactions
contemplated hereby may be brought in the Courts of Delaware or the United
States District Court for the District of Delaware (each, a "DELAWARE COURT"),
(II) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding
brought in any Delaware Court, and any claim that any such action or proceeding
brought in any Delaware Court has been brought in an inconvenient forum, and
(III) submits to the non-exclusive jurisdiction of Delaware Courts in any suit,
action or proceeding. Each of the parties agrees that a judgment in any suit,
action or proceeding brought in a Delaware Court shall be conclusive and binding
upon it and may be enforced in any other courts to whose jurisdiction it is or
may be subject, by suit upon such judgment.
Section 7.4 WAIVER OF JURY TRIAL. EACH OF THE PARTIES AGREES AND
ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY 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.
Section 7.5 SPECIFIC PERFORMANCE. Each Family Stockholder acknowledges and
agrees that (I) the obligations and agreements of such Family Stockholder
contained in this Agreement relate to special, unique and extraordinary matters,
(II) Riverwood is and will be relying on such covenants in connection with
entering into the Merger Agreement and the performance of its obligations under
the Merger Agreement, and (III) a violation of any of the terms of such Family
Stockholder's obligations or agreements will cause Riverwood irreparable injury
for which adequate remedies are not available at law. Therefore, each Family
Stockholder agrees that Riverwood shall be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post bond) as a court of competent jurisdiction may deem necessary or
appropriate to restrain such Family Stockholder from committing any violation of
such covenants, obligations or agreements. These injunctive remedies are
cumulative and in addition to any other rights and remedies Riverwood may have.
Section 7.6 AMENDMENT, WAIVERS, ETC. Neither this Agreement nor any term
hereof may be amended or otherwise modified other than by an instrument in
writing signed by Riverwood and the Family Representative. No provision of this
Agreement
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may be waived, discharged or terminated other than by an instrument in writing
signed by the party against whom the enforcement of such waiver, discharge or
termination is sought.
Section 7.7 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement shall
not be assignable or otherwise transferable by a party without the prior consent
of the other parties, and any attempt to so assign or otherwise transfer this
Agreement without such consent shall be void and of no effect; PROVIDED that (I)
any Permitted Transferee acquiring any Subject Shares in accordance with Section
4.1 shall, on the terms provided in Section 4.1, become a "Family Stockholder",
and (II) Riverwood may, in its sole discretion, assign or transfer all or any of
its rights, interests and obligations under this Agreement to any direct or
indirect wholly-owned subsidiary of Riverwood. This Agreement shall be binding
upon the respective heirs, successors, legal representatives and permitted
assigns of the parties hereto. Nothing in this Agreement shall be construed as
giving any Person, other than the parties hereto and their heirs, successors,
legal representatives and permitted assigns, any right, remedy or claim under or
in respect of this Agreement or any provision hereof.
Section 7.8 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such costs and expenses.
Section 7.9 NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for in this Agreement shall be in
writing and shall be deemed validly given upon personal delivery or one day
after being sent by overnight courier service or by telecopy (so long as for
notices or other communications sent by telecopy, the transmitting telecopy
machine records electronic confirmation of the due transmission of the notice),
at the following address or telecopy number, or at such other address or
telecopy number as a party may designate to the other parties:
(A) if to Riverwood to:
Riverwood Holding, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: General Counsel
Telecopy: (000) 000-0000
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with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx X. Xxxx
Telecopy: (000) 000-0000
(B) if to any Family Stockholder to:
Coors Family Trust
Mail Stop VR 900
P.O. Box 4030
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxx, XX 00000
Attn.: Xxxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Section 7.10 REMEDIES. No failure or delay by any party 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 other right, power or privilege. The
rights and remedies provided herein shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 7.11 SEVERABILITY. If any term or provision of this Agreement is
held to be invalid, illegal, incapable of being enforced by any rule of law, or
public policy, or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties hereto to the
maximum extent possible. In any event, the invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
13
Section 7.12 INTEGRATION. This Agreement, including all exhibits and
schedules attached hereto, constitutes the full and entire understanding and
agreement of the parties with respect to the subject matter hereof and thereof
and supersede any and all prior understandings or agreements relating to the
subject matter hereof and thereof.
Section 7.13 SECTION HEADINGS. The article and section headings of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
Section 7.14 FURTHER ASSURANCES. From time to time at the request of
Riverwood, and without further consideration, each Family Stockholder shall
execute and deliver or cause to be executed and delivered such additional
documents and instruments and take all such further action as may be reasonably
necessary or desirable to effect the matters contemplated by this Agreement.
Section 7.15 STOP TRANSFER. Each of the Family Stockholders agrees that
such Family Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Subject Shares, unless such transfer is made in compliance with
this Agreement.
Section 7.16 PUBLIC ANNOUNCEMENTS. Each Family Stockholder will consult
with Riverwood before issuing, and provide Riverwood with the opportunity to
review and comment upon, any press release or other public statements with
respect to the transactions contemplated by this Agreement and the Merger
Agreement, and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
law, court process or by obligations pursuant to any listing agreement with any
national securities exchange (including, but not limited to, the New York Stock
Exchange).
Section 7.17 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[Remainder of page intentionally left blank.]
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
RIVERWOOD HOLDING, INC.
By: /S/ XXXXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
The undersigned each hereby (I) acknowledges
and accepts his appointment as a Family
Representative pursuant to Section 4.5
and the grant of the proxy referred to in
Section 4.6, and (II) agrees and confirms
that he will vote all Subject Shares in
accordance with Sections 3.1(a) and (b):
/S/ XXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxx
/S/ XXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxx
XXXXXX XXXXX FOUNDATION, except with respect
to Section 4.8 of the Voting Agreement,
which shall not be applicable to such
foundation
By:/S/ XXXXXXX X. XXXXX
-----------------------------------------
Xxxxxxx X. Xxxxx
/S/ XXXXXXX X. XXXXX
----------------------------------------
XXXXXXX X. XXXXX as Trustee of Xxxxxx
Xxxxx, Xx. Trust dated September 12,
1969, Xxxxxx X. Coors Trust dated
August 7, 1952, Xxxxxx X. Xxxxx Trust
dated July 5, 1946, May Xxxxxxx Coors
Trust dated September 24, 1965, Augusta
Coors Collbran Trust dated July 5, 1946,
Xxxxxx Xxxxx Xxxxxx Trust dated July 5,
1946, Xxxxxx Xxxxx Xxxxxx Trust dated
July 5, 1946, Xxxxxx Xxxxx Trust dated
December 14, 1988, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxxxx X. Xxxxx
dated July 27, 1976, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxx X. Xxxxxx
dated July 27, 1976, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxxx X. Xxxxxx
dated July 27, 1976
/S/ XXXXXX XXXXX, XX.
----------------------------------------
XXXXXX XXXXX, XX. as Trustee of May
Xxxxxxx Coors Trust dated September 24,
1965, Xxxxxx X. Xxxxx Trust dated
July 5, 1946, Augusta Coors Collbran
Trust dated July 5, 1946, Xxxxxx Xxxxx
Xxxxxx Trust dated July 5, 1946, Xxxxxx
Xxxxx Xxxxxx Trust dated July 5, 1946,
Xxxxxx Xxxxx Trust dated December 14,
1988, Xxxxxx X. Coors Trust dated
September 12, 1969
/S/ XXXXXXX X. XXXXX
----------------------------------------
XXXXXXX X. XXXXX as Trustee of Xxxxxx
Xxxxx, Xx. Trust dated September 12,
1969, May Xxxxxxx Coors Trust dated
September 24, 1965, Xxxxxx X. Coors
Trust dated August 7, 1952, Xxxxxx X.
Xxxxx Trust dated July 5, 1946, Augusta
Coors Collbran Trust dated July 5, 1946,
Xxxxxx Xxxxx Xxxxxx Trust dated July 5,
1946, Xxxxxx Xxxxx Xxxxxx Trust dated
July 5, 1946, Xxxxxx Xxxxx Trust dated
December 14, 1988, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxxxx X. Xxxxx
dated July 27, 1976, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxx X. Xxxxxx
dated July 27, 1976, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxxx X. Xxxxxx
dated July 27, 1976
/S/ XXXXX X. XXXXX
----------------------------------------
XXXXX X. XXXXX as Trustee of Xxxxxx
Xxxxx, Xx. Trust dated September 12,
1969, May Xxxxxxx Coors Trust dated
September 24, 1965, Xxxxxx X. Coors
Trust dated August 7, 1952, Xxxxxx X.
Xxxxx Trust dated July 5, 1946, Augusta
Coors Collbran Trust dated July 5, 1946,
Xxxxxx Xxxxx Xxxxxx Trust dated July 5,
1946, Xxxxxx Xxxxx Xxxxxx Trust dated
July 5, 1946, Xxxxxx Xxxxx Trust dated
December 14, 1988, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxxxx X. Xxxxx
dated July 27, 1976, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxx X. Xxxxxx
dated July 27, 1976, Xxxxx X. Xxxxx
Irrevocable Trust FBO Xxxxxx X. Xxxxxx
dated July 27, 1976
/S/ XXXX X. XXXXX
----------------------------------------
XXXX X. XXXXX as Trustee of May Xxxxxxx
Coors Trust dated September 24, 1965,
Xxxxxx X. Coors Trust dated August 7,
1952, Xxxxxx X. Xxxxx Trust dated
July 5, 1946, Augusta Coors Collbran
Trust dated July 5, 1946, Xxxxxx Xxxxx
Xxxxxx Trust dated July 5, 1946, Xxxxxx
Xxxxx Xxxxxx Trust dated July 5, 1946
/S/ DARDEN K. COORS
----------------------------------------
DARDEN K. COORS as Trustee of Xxxxxx X.
Xxxxx Trust dated July 5, 1946
/S/ XXXXXXX X. XXXXX
----------------------------------------
XXXXXXX X. XXXXX as Trustee of Xxxxxx
Xxxxx, Xx. Trust dated September 12, 1969
/S/ X. XXXXXXXX COORS
----------------------------------------
X. XXXXXXXX COORS as Trustee of Xxxxxx
Xxxxx, Xx. Trust dated September 12, 1969
/S/ XXXX X. XXXXX
----------------------------------------
XXXX X. XXXXX, Individually
/S/ XXXXXX XXXXX, XX.
----------------------------------------
XXXXXX XXXXX, XX., Individually
/S/ XXXXXXX X. XXXXX
----------------------------------------
XXXXXXX X. XXXXX, Individually
/S/ XXXXXXX X. XXXXX
----------------------------------------
XXXXXXX X. XXXXX, Individually
/S/ XXXXX X. XXXXX
----------------------------------------
XXXXX X. XXXXX, Individually
/S/ DARDEN K. COORS
----------------------------------------
DARDEN K. COORS, Individually
21466448v11
Schedule A to
Voting Agreement
OWNERSHIP OF SUBJECT SHARES
Shares of
Shares of Series B Preferred
Stockholder Common Stock Stock
----------------------------------- -------------- ---------------------
XXXXXX XXXXX, XX. TRUST dated 2,800,000 --
September 12, 1969
AUGUST COORS COLLBRAN TRUST dated 1,015,350 --
July 5, 1946
XXXXXX XXXXX XXXXXX TRUST dated 1,140,490 --
July 5, 1946
XXXXXX X. COORS TRUST dated 2,727,016 1,000,000(1)
August 7, 1952
XXXXXX X. XXXXX TRUST dated July 5, 1,435,000 --
1946
XXXXX X. XXXXX IRREVOCABLE TRUST 59,356 --
FBO XXXXXXX X. XXXXX dated July 27,
1976
XXXXX X. XXXXX IRREVOCABLE TRUST 59,354 --
FBO XXXXX X. XXXXXX dated July 27,
1976
XXXXX X. XXXXX IRREVOCABLE TRUST 59,354 --
FBO XXXXXX X. XXXXXX dated July 27,
1976
XXXXXX XXXXX TRUST dated 250,000 --
December 14, 1988
XXXXXX XXXXX XXXXXX TRUST dated 920,220 --
July 5, 1946
MAY XXXXXXX COORS TRUST dated 1,726,652 --
September 24, 1965
--------------------
1 Convertible into 48,484,848 shares of Common Stock.
Sch A - Page 1
DARDEN K. COORS 4,830(2) --
XXXXXXX X. XXXXX 288,227(3) --
XXXX X. XXXXX 2,375 --
XXXXXX XXXXX, XX. 3,565(4) --
XXXXX X. XXXXX 9,074 --
XXXXXXX X. XXXXX 153,691(5) --
XXXXXX XXXXX FOUNDATION 857,744 --
--------------------
2 Includes 3,644 shares held in 401(k) Plan. Does not include 11,138 shares
held in options.
3 Includes 140,590 shares held in 401(k) Plan; 250 shares held in PAYSOP;
and 86,885 shares that have been issued and will be fully vested by
12/10/06 over which Mr. Coors has voting rights. Does not include 226,321
unissued shares held in deferred compensation plan; 300,000 unissued
shares held in long term incentive plan; 1,603,489 shares held in options;
or 30,400 shares held indirectly by partner.
4 Includes 194 shares held in PAYSOP.
5 Does not include 6,184 shares held in options.
Sch A - Page 2
