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EXHIBIT 10.18
AGREEMENT
AGREEMENT, dated as of November 18, 1999, between Riverwood
Holding, Inc. (formerly New River Holding, Inc.), a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxx (the "Executive").
The Company and the Executive hereby agree as follows:
1. Supplemental Payment.
(a) In the event that a Change in Control occurs prior to
March 26, 2002, and provided that
(i) no EBITDA Shortfall shall have occurred under the Credit
Agreement and
(ii)(x) the Executive remains continuously employed with the
Company or one of the Subsidiaries from the date hereof through the
date of such Change in Control or (y) if the CD&R Fund and, if
applicable, its Affiliates effect a sale or other disposition of all
of the Common Stock then held by the CD&R Fund and its Affiliates to
one or more persons other than any person who is an Affiliate of the
CD&R Fund and thereafter, the Executive's employment is terminated by
the Company other than for Cause or by the Executive for Good Reason
and such Change in Control occurs within six months of the date of
such termination of employment,
the Executive shall be entitled to a supplemental payment in an amount equal to
the shortfall, if any, between (x) the aggregate value of any Options (as
determined by the Board as constituted immediately prior to the Change in
Control and without regard to any withholding or other similar taxes) and (y)
$10,000,000 (ten million dollars) (the "Supplemental Payment").
(b) Subject to Section 2, the Supplemental Payment, if any,
shall be payable in full, as soon as reasonably practicable, but in no event
later than, 30 days following the Change in Control. Payment of the amount
calculated in accordance with the preceding paragraph shall be made, in cash,
or in the discretion of or the Board (as constituted immediately prior to the
Change in Control) in connection with a transaction that is intended to be a
"pooling of interest" transaction, in shares of the stock of the New Employer
having an aggregate fair market value equal to such amount (provided that the
shares of such New Employer are publicly traded and will be transferable in the
hands of the Executive).
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(c) Notwithstanding any other provision of this Agreement, no
shares of the stock of a New Employer shall be delivered, (A) unless all
requisite approvals and consents of any governmental authority of any kind
having jurisdiction with respect thereto shall have been secured, (B) unless
the delivery of such shares shall be exempt from registration under applicable
U.S. federal and state securities laws, and applicable non-U.S. securities
laws, or the shares shall have been registered under such laws, and (C) unless
all applicable U.S. federal, state and local and non-U.S. tax withholding
requirements shall have been satisfied. The Company shall use commercially
reasonable efforts to obtain the consents and approvals referred to in clause
(A) of the preceding sentence and to satisfy the withholding requirements
referred to in clause (C) of the preceding sentence.
(d) No right to a Supplemental Payment may be assigned,
transferred, in whole or in part, and may not be, directly or indirectly,
offered, transferred, sold, pledged, assigned, alienated, hypothecated or
otherwise disposed of or encumbered (including without limitation by gift,
operation of law or otherwise) without the consent of the Board, except to a
trust, partnership, limited liability company or other entity of which the only
beneficiaries, partners or members are members of the Executive's immediate
family.
(e) Whenever any amount is to be paid with respect to a
Supplemental Payment, the Company may require the recipient to remit to the
Company an amount sufficient to satisfy any applicable U.S. federal, state and
local and non-U.S. tax withholding requirements where the payment is not to be
made in cash.
2. Automatic Offset. Any amounts otherwise payable to the
Executive in respect of a Supplemental Payment shall, without any further
action of the Company or the Executive, be applied in full or partial
prepayment of any amounts outstanding under the Promissory Note, dated as of
November __, 1999 between the Company and Executive.
3. Certain Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall mean, with respect to any person, any other
person controlled by, controlling or under common control with such
person.
"Board" shall mean the Board of Directors of the Company.
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"Cause" shall have the meaning assigned to such term in the
Employment Agreement.
"CD&R Fund" shall mean the Xxxxxxx, Dubilier & Rice Fund V
Limited Partnership, a Cayman Islands exempted limited partnership,
and any successor investment vehicle managed by Xxxxxxx, Dubilier &
Rice, Inc.
"Change in Control" shall mean the first to occur of the
following events after the date hereof:
(i) the acquisition by any person, entity or "group"
(as defined in Section 13(d) of the Exchange Act), other than
the Company, the Subsidiaries, any employee benefit plan of
the Company or the Subsidiaries, the CD&R Fund, any Investor
or any Affiliate of the CD&R Fund or of an Investor, of 50%
or more of the combined voting power of the Company's or
RIC's then out standing voting securities;
(ii) the merger or consolidation of the Company or
RIC, as a result of which persons who were stockholders of
the Company or RIC, as the case may be, immediately prior to
such merger or consolidation, do not, immediately thereafter,
own, directly or indirectly, more than 50% of the combined
voting power entitled to vote generally in the election of
directors of the merged or consolidated company;
(iii) the liquidation or dissolution of the Company
or RIC other than a liquidation of RIC into the Company or
into any Subsidiary; and
(iv) the sale, transfer or other disposition of all
or substantially all of the assets of the Company or RIC to
one or more persons or entities that are not, immediately
prior to such sale, transfer or other disposition, Affiliates
of the Company, RIC, the CD&R Fund or any Investor.
"Credit Agreement" shall mean the Credit Agreement, dated as
of March 21, 1996, among Riverwood (as successor to RIC Holding,
Inc.), the other borrowers party thereto, The Chase Manhattan Bank
(formerly known as Chemical Bank), as administrative agent, and the
lenders party thereto from time to time, as the same has previously
been and may be amended from time to time.
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"EBITDA," for any period, shall, have the meaning assigned to
such term in the Credit Agreement.
"EBITDA Shortfall" shall mean the failure by the Company to
maintain the minimum EBITDA specified for any period in Section 8.1 of
the Credit Agreement as of the same may be amended from time to time.
"Employment Agreement" shall mean the Employment Agreement,
dated as March 26, 1997, by and among the Executive, the Company and
RIC.
"Good Reason" shall have the meaning assigned to such term in
the Employment Agreement.
"Investors" shall mean each of the investors who purchased
shares of Common Stock or shares of Class B Common Stock of the
Company concurrently with the consummation of the merger contemplated
by the Merger Agreement, and their "specified affiliates," within the
meaning of the Stockholders Agreement of the Company, as amended from
time to time.
"New Employer" shall mean the Executive's employer, or the
parent or a subsidiary of the New Employer, immediately following a
Change in Control.
"Options" shall mean any and all options granted to the
Executive to purchase shares of the Company pursuant to any stock or
other similar incentive compensation plan.
"RIC" shall mean Riverwood International Corporation, a
Delaware corporation formerly known as Riverwood International USA,
Inc., and any successor thereto.
"Subsidiary" shall mean any corporation or other person, a
majority of whose outstanding voting securities or other equity
interests are owned, directly or indirectly, by the Company.
4. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if
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delivered personally or sent by certified or express mail, return receipt
requested, postage prepaid, or by any recognized international equivalent of
such delivery, to the Company, the CD&R Fund or the Executive, as the case may
be, at the following addresses or to such other address as the Company, the CD&R
Fund or the Executive, as the case may be, shall specify by notice to the
others:
(i) if to the Company, to it at:
Riverwood Holding, Inc.
Suite 1200
0000 Xxxxx Xxxxxx Xxxxxx
P.O. Box 8985
Wilmington, Delaware 19899
Attention: General Counsel
(ii) if to the Executive, to the Executive at his address
last known.
(iii) if to the CD&R Fund, to:
Xxxxxxx, Dubilier & Rice Fund V
Limited Partnership
Xxxxxxxxxx Xxxxx, Xxxxx 000
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, III
All such notices and communications shall be deemed to have been received on
the date of delivery if delivered personally or on the third business day after
the mailing thereof. Copies of any notice or other communication given under
this Agreement shall also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
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The CD&R Fund also shall be given a copy of any notice or other communication
between the Executive and the Company under this Agreement at its address as
set forth above.
(b) Binding Effect; Benefits. This Agreement shall be binding
upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns. Nothing in this Agreement, express or
implied, is intended or shall be construed to give any person other than the
parties to this Agreement or their respective successors or assigns any legal
or equitable right, remedy or claim under or in respect of any agreement or any
provision contained herein.
(c) Waiver; Amendment.
(i) Waiver. Any party hereto or beneficiary hereof
may by written notice to the other parties (A) extend the
time for the performance of any of the obligations or other
actions of the other parties under this Agreement, (B) waive
compliance with any of the conditions or covenants of the
other parties contained in this Agreement and (C) waive or
modify performance of any of the obligations of the other
parties under this Agreement. Except as provided in the
preceding sentence, no action taken pursuant to this
Agreement, including, without limitation, any investigation
by or on behalf of any party or beneficiary, shall be deemed
to constitute a waiver by the party or beneficiary taking
such action of compliance with any representations,
warranties, covenants or agreements contained herein. The
waiver by any party hereto or beneficiary hereof of a breach
of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach
and no failure by a party or beneficiary to exercise any
right or privilege hereunder shall be deemed a waiver of such
party's or beneficiary's rights or privileges hereunder or
shall be deemed a waiver of such party's or beneficiary's
rights to exercise the same at any subsequent time or times
hereunder.
(ii) Amendment. This Agreement may not be amended,
modified or supplemented orally, but only by a written
instrument executed by the Executive and the Company, and (in
the case of any amendment, modification or supplement that
adversely affects the rights of the CD&R Fund hereunder)
consented to by the CD&R Fund in writing.
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(d) Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company or the Executive without the prior written consent of
the other parties and the CD&R Fund.
(e) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT THAT THE CORPORATE LAW OF THE STATE OF DELAWARE SPECIFICALLY AND
MANDATORILY APPLIES.
(f) Section and Other Headings, etc. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same instrument.
(h) No Right to Continued Employment. Nothing in this
Agreement shall be deemed to confer on the Executive any right to continue in
the employ of the Company or any Subsidiary, or to interfere with or limit in
any way the right of the Company or any Subsidiary to terminate such employment
at any time.
(i) Delegation by the Board. All of the powers, duties and
responsibilities of the Board specified in this Agreement may, to the full
extent permitted by applicable law, be exercised and performed by any duly
constituted committee thereof to the extent authorized by the Board to exercise
and perform such powers, duties and responsibilities.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Agreement as of the date first above written.
RIVERWOOD HOLDING, INC.
By:/s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Secretary
XXXXXXX X. XXXXXXXX
By:/s/ Xxxxxxx X. Xxxxxxxx
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