EXHIBIT (d)(2)
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement"), dated January 21, 2002,
by and among Temple-Inland Inc., a Delaware corporation ("Parent"),
Temple-Inland Acquisition Corporation, a Delaware corporation and an indirect
wholly-owned subsidiary of Parent ("Merger Subsidiary"), and each of Mid-America
Group, Ltd., Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxx Xxx
Xxxxxxx, Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxx X. Xxxx, Xxxxx X. XxxXxxxxx Xx., Xxxxxxx X. Xxxxxx, Xxxxxxxx X.
Xxxxx, and Xxxxxxx X. Park (each in his individual capacity, a "Stockholder",
and collectively, the "Stockholders").
WITNESSETH
WHEREAS, each of the Stockholders is, as of the date hereof, the record
and beneficial owner of that number of shares of Class A Common Stock, par value
$.0001 per share (the "Company Common Stock"), of Xxxxxxx Container Corporation,
a Delaware corporation (the "Company"), set forth on Schedule 1(a) hereto;
WHEREAS, Parent, Merger Subsidiary and the Company concurrently with
the execution and delivery of this Agreement are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), providing
for, among other things, the acquisition of the Company by Parent by means of a
cash tender offer (the "Offer") for all of the outstanding shares of Company
Common Stock and for the subsequent merger (the "Merger") of Merger Subsidiary
with and into the Company upon the terms and subject to the conditions set forth
in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Merger
Subsidiary to enter into the Merger Agreement, and in order to induce Parent and
Merger Subsidiary to enter into the Merger Agreement, the Stockholders have
agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Merger Subsidiary of the Merger Agreement and the foregoing and the
mutual representations, warranties, covenants and agreements contained herein
and therein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Representations and Warranties of the Stockholders. Each of
the Stockholders hereby represents and warrants to Parent and Merger Subsidiary,
severally and not jointly, as follows:
(a) Such Stockholder is the record and beneficial owner of the
shares of Company Common Stock (as may be adjusted from time to time pursuant to
Section 6 hereof, the "Shares") set forth opposite his name on Schedule 1(a) to
this Agreement and such Shares represent all of the Shares beneficially owned
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) by such Stockholder. For purposes of this
Agreement, the term "Shares" shall include any shares of Company Common Stock
issued to the Stockholder upon exercise of any stock options that are currently
exercisable or become exercisable, restricted stock and any other shares of
Company Common Stock such Stockholder may acquire or beneficially own during the
term of this Agreement. Schedule 1(a) lists all options and shares of restricted
stock issued to the Stockholders.
(b) Such Stockholder has all requisite power and authority
and, if an individual, the legal capacity, to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This Agreement has been
validly executed and delivered by such Stockholder and, assuming that this
Agreement constitutes the legal, valid and binding obligation of the other
parties hereto, constitutes the legal, valid and binding obligation of
Stockholder, enforceable against such Stockholder in accordance with its terms.
(c) The execution and delivery of this Agreement by such
Stockholder do not, and the consummation of the transactions contemplated by and
compliance with the provisions of this Agreement will not, (i) conflict with the
Certificate of Incorporation or By-laws or similar organizational documents of
such Stockholder as presently in effect (in the case of a Stockholder that is a
legal entity), (ii) conflict with or violate any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to such Stockholder or by
which it is bound or affected, (iii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, contract, indenture, note or
instrument to which such Stockholder is a party or by which it is
2
bound or affected, except for such breaches, defaults or other occurrences that
would not prevent or materially delay the performance by Stockholder of such
Stockholder's obligations under this Agreement, or (iv) except for applicable
requirements, if any, of the Exchange Act, require any filing by such
Stockholder with, or any permit, authorization, consent or approval of, any
governmental or regulatory authority, except where the failure to make such
filing or obtain such permit, authorization, consent or approval would not
prevent or materially delay the performance by Stockholder of such Stockholder's
obligations under this Agreement.
(d) The Shares and the certificates representing the Shares
owned by such Stockholder are now and at all times during the term hereof will
be held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder.
(e) As of the date hereof, neither the Stockholder, nor any of
its respective properties or assets is subject to any order, writ, judgment,
injunction, decree, determination or award that would prevent or delay the
consummation of the transactions contemplated hereby.
(f) There are no options or rights to acquire, or any
agreements to which the Stockholder is a party relating to any of the Shares,
other than as set forth in this Agreement.
(g) Except as set forth on Schedule 1(g), no Stockholder,
directly or indirectly, owns any of the Company's 9-3/8% Senior Notes due 2007,
9-3/4% Senior Notes due 2007 or 9-7/8% Senior Subordinated Notes due 2008
(collectively, the "Notes").
Section 2. Representations and Warranties of Parent and Merger
Subsidiary. Each of Parent and Merger Subsidiary hereby, jointly and severally,
represents and warrants to the Stockholders as follows:
(a) Each of Parent and Merger Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Each of Parent and Merger Subsidiary has all requisite power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement.
3
This Agreement has been duly executed and delivered by each of Parent and Merger
Subsidiary and constitutes the legal, valid and binding obligation of each of
Parent and Merger Subsidiary, enforceable against each of them in accordance
with its terms.
(b) The execution and delivery of this Agreement by each of
Parent and Merger Subsidiary do not, and the consummation of the transactions
contemplated by and compliance with the provisions of this Agreement will not,
(i) conflict with or violate the Certificate of Incorporation or By-laws of
either of Parent or Merger Subsidiary, in each case as amended to the date of
this Agreement, (ii) conflict with or violate any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Parent or Merger
Subsidiary or by which either is bound or affected, (iii) result in any breach
of or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, contract, indenture,
note or instrument to which Parent or Merger Subsidiary is a party or by which
either is bound or affected or (iv) except for applicable requirements, if any,
of the HSR Act and the Exchange Act or any foreign antitrust and competition
laws and regulations, require any filing by Parent or Merger Subsidiary with, or
any permit, authorization, consent or approval of, any governmental or
regulatory authority.
Section 3. Purchase and Sale of the Shares. Each of the Stockholders
hereby agrees that it shall tender the Shares into the Offer promptly, and in
any event no later than the tenth business day following the commencement of the
Offer pursuant to Section 1.1 of the Merger Agreement, and that such Stockholder
shall not withdraw any Shares so tendered unless the Offer is terminated or has
expired. Merger Subsidiary hereby agrees to purchase all the Shares so tendered
at a price per Share equal to the Merger Consideration (as defined in the Merger
Agreement) or any higher price that may be paid in the Offer; provided, however,
that Merger Subsidiary's obligation to accept for payment and pay for the Shares
in the Offer is subject to all the terms and conditions of the Offer set forth
in the Merger Agreement and Annex I thereto.
Section 4. Restrictions on Dispositions. Prior to the termination of
this Agreement, except as otherwise provided herein, none of the Stockholders
shall: (i) directly or indirectly, transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the Shares or any
interest therein; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of
4
any or all of the Shares or any interest therein; (iii) grant any proxy,
power-of-attorney or other authorization or consent in or with respect to the
Shares; (iv) deposit the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or (v) take any other action
that would in any way restrict, limit or interfere with the performance of such
Stockholder's obligations hereunder or the transactions contemplated hereby.
Section 5. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each of the Stockholders hereby irrevocably grants to, and
appoints, Parent and any nominee thereof, its proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of such
Stockholder, to vote the Shares, or grant a consent or approval in respect of
the Shares, in connection with any meeting of the stockholders of the Company
(i) in favor of the Merger, and (ii) against any action or agreement which would
impede, interfere with or prevent the Merger, including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company and a third party or any other proposal of a third party to acquire
the Company.
(b) Such Stockholder represents that any proxies heretofore
given in respect of the Shares, if any, are not irrevocable, and that such
proxies are hereby revoked.
(c) Such Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 5 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Stockholder under this Agreement. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and, except as set forth in Section 8 hereof, is intended to be
irrevocable in accordance with the provisions of Section 212(e) of the Delaware
General Corporation Law.
Section 6. Adjustments Upon Share Issuances, Changes in Capitalization,
etc. In the event of any change in Company Common Stock or in the number of
outstanding shares of Company Common Stock by reason of a stock dividend,
split-up, recapitalization, combination, exchange of shares or similar
transaction or any other change in the corporate or capital structure of the
Company (including, without limitation, the declaration or payment of an
extraordinary dividend of cash, securities or other property), the number of
Shares shall be adjusted appropriately, and this Agreement and the obligations
hereunder shall attach to any additional shares of
5
Company Common Stock or other securities or rights of the Company issued to or
acquired by each of the Stockholders.
Section 7. Tender of Notes. Each of the Stockholders listed on Schedule
1(g) hereto hereby agrees that it shall tender promptly its Notes into the
separate tender offers for the Notes (the "Notes Tender Offers") being made by
Parent or its designee concurrently with the Offer pursuant to the Offer to
Purchase and Consent Solicitation Statement dated January 22, 2002 (as amended
or supplemented from time to time, the "Notes Offer to Purchase"), and in any
event no later than the tenth business day following the commencement of the
Notes Tender Offers pursuant to Section 1.2 of the Merger Agreement, and that
such Stockholder shall not withdraw any Notes so tendered unless the Notes
Tender Offers are terminated or have expired. Parent or its designee hereby
agrees to purchase all the Notes so tendered at a purchase price (per $1,000
principal amount) as set forth in the Notes Offer to Purchase or any higher
price that may be paid in the Notes Tender Offers; provided, however, that
Parent's or its designee's obligation to accept for payment and pay for the
Notes in the Notes Tender Offers is subject to all the terms and conditions of
the Notes Tender Offers set forth in the Merger Agreement and Annex I thereto.
Section 8. Further Assurances. Each of the Stockholders shall, upon
request of Parent or Merger Subsidiary, execute and deliver any additional
documents and take such further actions as may reasonably be deemed by Parent or
Merger Subsidiary to be necessary or desirable to carry out the provisions
hereof and to vest the power to vote the Shares as contemplated by Section 5
hereof in Parent.
Section 9. Termination. This Agreement, and all rights and obligations
of the parties hereunder and the proxies provided hereby, shall terminate
immediately upon the earlier of (a) the termination of the Merger Agreement in
accordance with its terms, (b) the Effective Time (as defined in the Merger
Agreement), or (c) the written mutual consent of the parties hereto; provided,
however, that Section 10 shall survive any termination of this Agreement.
Section 10. Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall paid by the party incurring such costs or expenses.
Section 11. Miscellaneous.
6
(a) Definitions. Capitalized terms used and not otherwise
defined in this Agreement shall have the respective meanings assigned to such
terms in the Merger Agreement.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto and specifically referencing
this Agreement.
(c) Notices. All notices, requests and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) or by
telecopy (with copies by overnight courier) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
i. if to Parent or Merger Subsidiary, to
Temple-Inland Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: M. Xxxxxxx Xxxxxx, Esq.
Fax: 000-000-0000
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: 000-000-0000
ii. if to the Stockholders, to
Xxxxxxx Container Corporation
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
with a copy to (which shall not constitute notice):
7
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, P.C.
Xxxx X. Xxxxxxxxxx
Fax: 000-000-0000
(d) Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the Merger Agreement (including the documents and the instruments
referred to herein and therein): (i) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof, and (ii) are not intended
to confer upon any person other than the parties hereto any rights or remedies
hereunder.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties; any instrument purporting to make such
assignment shall be void. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
(h) Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Federal court located in
8
the State of Delaware or any Delaware state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement, (ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that it will not bring any action relating to this Agreement or any of
the transactions contemplated by this Agreement in any court other than a
Federal or state court sitting in the State of Delaware.
(i) Severability. Any term or provision of this Agreement that
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction or other authority declares that any term or provision
hereof is invalid, void or unenforceable, the parties agree that the court
making such determination shall have the power to reduce the scope, duration,
area or applicability of the term or provision, to delete specific words or
phrases, or to replace any invalid, void or unenforceable term or provision with
a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision.
[Signature pages follow]
9
IN WITNESS WHEREOF, Parent, Merger Subsidiary and the
Stockholders have caused this Agreement to be duly executed and delivered as of
the date first written above.
TEMPLE-INLAND INC.
By: /s/ M. Xxxxxxx Xxxxxx
-------------------------------------
Name: M. Xxxxxxx Xxxxxx
Title: Vice President and Chief
Administrative Officer
TEMPLE-INLAND ACQUISITION CORPORATION
By: /s/ M. Xxxxxxx Xxxxxx
-------------------------------------
Name: M. Xxxxxxx Xxxxxx
Title: Vice President
10
(Continuation of Signature Page to the Stockholders Agreement)
MID-AMERICA GROUP, LTD.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxx Xxx Xxxxxxx
--------------------------------
Xxxx Xxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxx
11
(Continuation of Signature Page to the Stockholders Agreement)
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
/s/ Xxxxx X. XxxXxxxxx, Xx.
--------------------------------
Xxxxx X. XxxXxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxx
--------------------------------
Xxxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Park
--------------------------------
Xxxxxxx X. Park
12
SCHEDULE 1(a)
OWNERSHIP OF EQUITY SECURITIES OF THE COMPANY
SHARES OF CLASS SHARES OF SHARES UNDER
A COMMON RESTRICTED UNEXERCISED
SHAREHOLDER STOCK STOCK OPTION GRANTS
----------- --------------- ---------- -------------
Mid-America Group, Ltd. 4,589,942
Xxxxxx X. Xxxxxxxxx 40,000
Xxxxxx X. Xxxxxxx 883,186 28,000
Xxxxxx X. Xxxxx 97,250 250,000 150,000
Xxxx Xxx Xxxxxxx 3,008 28,000
Xxxxx X. Xxxxxxx 25,000 28,000
Xxxx X. Xxxxxxxx 21,500 28,000
Xxxxx X. Xxxxxxx 2,000 28,000
Xxxxxxx X. Xxxxxxx 28,000
Xxxxx X. Xxxx 10,000 21,000
Xxxxx X. XxxXxxxxx Xx 40,000 28,000
Xxxxxxx X. Xxxxxx 108,570 300,000 85,000
Xxxxxxxx X. Xxxxx 54,000 125,000 75,000
Xxxxxxx X. Park 48,024 75,000 55,000
--------- ------- -------
Totals 5,922,480 750,000 582,000
13
SCHEDULE 1(g)
OWNERSHIP OF DEBT SECURITIES OF THE COMPANY
Xxxx X. Xxxxxxxx owns $30,000 principal amount of the Company's 9-3/4% Senior
Notes due 2007.
14
