EXHIBIT 2.3
STANDSTILL AGREEMENT
Dated as of May 10, 1998
among
JEFFERSON SMURFIT GROUP PLC,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEVERAGED EQUITY FUND II, INC.
and
JEFFERSON SMURFIT CORPORATION
TABLE OF CONTENTS
Page
ARTICLE 1
Standstill and Transfer Matters
Section 1.1. Acquisitions............................................1
Section 1.2. Certain Other Matters...................................2
Section 1.3. Transfer Restrictions...................................3
Section 1.4. Suspension; Termination.................................4
Section 1.5. Pulp Co. Transaction....................................5
Section 1.6. Effective Date of this Agreement........................5
ARTICLE 2
Representations and Warranties
Section 2.1. Organization............................................6
Section 2.2. Authority...............................................6
Section 2.3. No Violation............................................6
ARTICLE 3
Termination
Section 3.1. Termination.............................................7
Section 3.2. Effect of Termination...................................7
ARTICLE 4
Miscellaneous
Section 4.1. Notices.................................................8
Section 4.2. Entire Agreement........................................9
Section 4.3. Successors and Assigns..................................9
Section 4.4. Amendments and Waivers.................................10
Section 4.5. Governing Law..........................................10
Section 4.6. WAIVER OF JURY TRIAL, ETC..............................10
Section 4.7. Counterparts...........................................10
Section 4.8. Captions...............................................11
Section 4.9. Specific Performance; Enforcement......................11
Section 4.10. Certain Definitions....................................11
STANDSTILL AGREEMENT
STANDSTILL AGREEMENT dated as of May 10, 1998 among Jefferson
Smurfit Group plc, a corporation organized under the laws of Ireland ("JSG"),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Fund II, Inc., a Delaware corporation
("MSLEF"), and Jefferson Smurfit Corporation, a Delaware corporation ("JSC").
W I T N E S S E T H
WHEREAS, concurrently with the execution of this Agreement,
Stone Container Corporation, a Delaware corporation ("Stone"), and JSC are
executing an Agreement and Plan of Merger (the "Merger Agreement"), providing
for the merger (the "Merger") of JSC Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of JSC ("Merger Sub"), with and into
Stone; and
WHEREAS, following the consummation of the Merger, MSLEF and
certain Subsidiaries (as defined below) of JSG will continue to beneficially
own shares of common stock, par value $0.1 per share ("JSC Common Stock"), of
JSC; and
WHEREAS, in connection with the Merger, the parties hereto wish
to enter into this Agreement to address certain matters with respect to the
shares of JSC Common Stock beneficially owned by such Subsidiaries of JSG and
by MSLEF;
The parties hereto agree as follows:
ARTICLE 1
Standstill and Transfer Matters
Section 1.1. Acquisitions. (a) Subject to Section 1.4, from the
Effective Date (as defined in Section 1.6) until the fifth anniversary of the
Effective Date, JSG will not, and will cause each of its Subsidiaries not to,
directly or indirectly, acquire, by purchase, gift, business combination or
otherwise, any Voting Securities such that, after giving effect to such
transaction, JSG and its Subsidiaries beneficially own Voting Securities
representing more than 40% of Total Voting Power; provided that the provisions
of this Section 1.1(a) shall not require JSG or any of its Subsidiaries to sell
or otherwise dispose of Voting Securities representing more than 40% of Total
Voting Power (such Voting Securities representing Voting Power in excess of 40%
of Total Voting Power, "Excess Voting Securities") to the extent, but only to
the extent, that such Voting Securities constitute Excess Voting Securities
solely as a result of a repurchase or other retirement of Voting Securities by
JSC or any of its Subsidiaries or solely as a result of purchases made by JSG or
its Subsidiaries during any period in which the restrictions contained in this
Section 1.1(a) were suspended pursuant to Section 1.4 (irrespective of any
subsequent reinstatement thereunder).
(b) Subject to Section 1.4, from the Effective Date until the
fifth anniversary of the Effective Date, MSLEF will not, and will cause each
of its Subsidiaries not to, directly or indirectly, acquire, by purchase, gift
or otherwise, any Voting Securities (except for shares of JSC Common Stock
acquired pursuant to a stock split, stock dividend, rights offering,
recapitalization, reclassification or similar transaction).
(c) If JSG or any of its Subsidiaries or MSLEF or any of its
Subsidiaries, as the case may be, acquires any Voting Securities in violation
of this Agreement, JSG or MSLEF or the applicable Subsidiary, as the case may
be, shall, as soon as it becomes aware of such violation, give immediate notice
to JSC and such Voting Securities shall immediately be disposed of (in
accordance with the terms of Section 1.3, in the case of any such disposition
by JSG or any of its Subsidiaries) to persons or entities who are not
affiliates or associates of the breaching party; provided that JSC may also
pursue any other available remedy to which it may be entitled as a result of
such violation.
Section 1.2. Certain Other Matters. Subject to Section 1.4 and
except as expressly contemplated by JSC's Bylaws (as amended in the manner
contemplated by the Merger Agreement) or the Voting Agreement dated as of the
date hereof among Smurfit International B.V., MSLEF and Mr. ▇▇▇▇▇ ▇▇▇▇▇, from
the Effective Date until the expiration of the Bylaw provisions (other than
those relating to MSLEF) contemplated by Section I.B. of Exhibit E-2 to the
Merger Agreement (or, in the case of paragraph (g) of this Section 1.2, until
the fifth anniversary of the Effective Date), JSG will not, and will cause
each of its Subsidiaries not to:
(a) make, or in any way participate in, any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the "1934 Act")), solicit any consent or communicate with or seek
to advise or influence any person or entity with respect to the voting of any
Voting Securities or become a "participant" in any "election contest" (as such
terms are defined or used in Rule 14a-11 under the ▇▇▇▇ ▇▇▇) with respect to
JSC;
(b) form, join or encourage the formation of any "group" (within
the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to any Voting
Securities; provided that this Section 1.2(b) shall not prohibit any such
arrangement solely among JSG and any of its Subsidiaries;
(c) deposit any Voting Securities into a voting trust or subject
any such Voting Securities to any arrangement or agreement with respect to the
voting thereof; provided that this Section 1.2(c) shall not prohibit any such
arrangement solely among JSG and any of its Subsidiaries;
(d) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to JSC as described
in Rule 14a-8 under the 1934 Act, or induce or attempt to induce any other
person or entity to initiate any such stockholder proposal;
(e) seek election to or seek to place a representative on the
Board of Directors of JSC or seek the removal of any member of the Board of
Directors of JSC;
(f) call or seek to have called any meeting of the stockholders of
JSC;
(g) solicit, seek to effect, negotiate with or provide any
information to any other party with respect to, or make any statement or
proposal (except for any statement or proposal in response to an acquisition
or business combination proposal by a party other than JSG or its
Subsidiaries), whether written or oral, to the Board of Directors of JSC or
otherwise make any public announcement (except as required by law or the
requirements of any relevant stock exchange or in the case of an acquisition
or business combination proposal by a party other than JSG or its
Subsidiaries) whatsoever with respect to, any form of acquisition or business
combination transaction involving JSC or any significant portion of its
assets, including, without limitation, a merger, tender offer, exchange offer
or liquidation, or any restructuring, recapitalization or similar transaction
with respect to JSC; or
(h) instigate or encourage any third party to do any of the
foregoing.
Section 1.3. Transfer Restrictions. (a) Subject to Section
1.4, from the Effective Date until the termination of the Bylaw provisions
(other than those relating to MSLEF) contemplated by Section I.B. of Exhibit
E-2 to the Merger Agreement, JSG will not, and will cause its Subsidiaries not
to, directly or indirectly, sell or otherwise transfer in any manner any Voting
Securities to any "person" (within the meaning of Section 13(d)(3) of the ▇▇▇▇
▇▇▇) who, to the knowledge of JSG, after reasonable inquiry, owns (or as a
result of such sale or transfer would own) more than five percent (5%) of
Total Voting Power; provided that the provisions of this Section 1.3(a) will
not prohibit sales or transfers solely among JSG and its Subsidiaries.
(b) Any sale or transfer made in violation of Section 1.3(a)
shall be null and void, and JSC shall not register any such sale or transfer
in its books and records.
Section 1.4. Suspension; Termination. (a) In the event that JSC
enters into a written agreement concerning an Acquisition Proposal, then the
restrictions set forth in Sections 1.1, 1.2 and 1.3 as to JSG and its
Subsidiaries shall thereupon be suspended (and during such period of
suspension be of no force and effect). If such agreement is terminated without
the consummation of the Acquisition Proposal, then such restrictions shall
thereupon be reinstated, subject to further suspension or reinstatement in the
event of the occurrence of further events described in the preceding sentence
or this sentence, respectively. For purposes of this Section 1.4,
"Acquisition Proposal" means any proposed acquisition of Voting Securities
representing more than 30% of the Total Voting Power, whether by business
combination, tender or exchange offer, or otherwise, or the proposed
acquisition of all or substantially all the assets of JSC and its
Subsidiaries, taken as a whole (other than the Merger or any other transaction
between JSC or any of its Subsidiaries, on the one hand, and JSG or any of its
Subsidiaries, on the other hand).
(b) In the event that any Person (other than JSG or any of its
Subsidiaries or any Person acting on behalf of or in participation with any of
the foregoing) commences a tender or exchange offer that, if fully
consummated, would result in such Person, together with such Person's
Subsidiaries, or any other Person acting on behalf of or in participation with
such Person or its Subsidiaries, becoming the beneficial owner of Voting
Securities representing more than 30% of the Total Voting Power, then the
restrictions set forth in Sections 1.1, 1.2 and 1.3 as to JSG and its
Subsidiaries shall thereupon be suspended (and during such period of
suspension be of no force and effect). If, upon the expiration of such tender
or exchange offer, the Person making such tender or exchange offer does not
acquire an amount of Voting Securities sufficient to make the provisions of
paragraph (c) of this Section 1.4 applicable, then such restrictions shall
thereupon be reinstated, subject to further suspension or reinstatement in the
event of the occurrence of further events described in the preceding sentence
or this sentence, respectively.
(c) In the event that it is publicly announced or JSG or JSC shall
become aware (in which case it shall promptly notify the other) that any
Person (other than JSG or any of its Subsidiaries or any Person acting on
behalf of or in participation with any of the foregoing), together with such
Person's Subsidiaries, or any other Person acting on behalf of or in
participation with such Person or its Subsidiaries, has become the beneficial
owner of Voting Securities representing more than 15% of the Total Voting
Power, then the restrictions set forth in Sections 1.1 and 1.2 as to JSG and
its Subsidiaries shall thereupon be terminated (without reinstatement) except
as set forth in the following proviso; provided that if such Person falls
within any of the categories set forth in Rule 13d-1(b)(1)(ii) under the 1934
Act and any Schedule 13D or 13G filed under the 1934 Act with respect to such
beneficial ownership does not state any intention to or reserve the right to
seek to control or influence the management or policies of JSC or engage in
any of the actions specified in clauses (b) through (i) of Item 4 of Schedule
13D, then such restrictions shall not be terminated, but shall be suspended
effective immediately following the 30th day following such public
announcement or JSG or JSC providing notice to the other of such an
acquisition (unless during such 30-day period or at any time thereafter such
Person publicly states any such intention or reserves any such right, in which
case such restrictions shall be terminated without reinstatement (so long as,
at the time of such statement of intention or reservation of right, such
Person continues to be the beneficial owner of Voting Securities representing
more than 15% of the Total Voting Power)); and provided, further, that if,
during such 30-day period or thereafter (but prior to any termination of such
restrictions) such Person divests a sufficient number of Voting Securities so
that such Person, together with such Person's Subsidiaries, no longer
beneficially owns Voting Securities representing more than 15% of the Total
Voting Power, then (if such divestiture occurs during such 30-day period) such
suspension shall not become effective or (if such divestiture occurs
thereafter) such restrictions shall be reinstated.
Section 1.5. Pulp Co. Transaction. In the event the Pulp Co.
Transaction (as defined in the schedules to the Merger Agreement other than
as to timing) is effected, JSG and MSLEF agree to enter into a standstill
agreement for a period to end five years after the Effective Date (or earlier
as specified herein) in substantially the form hereof with Pulp Co. (as
defined in the schedules to the Merger Agreement).
Section 1.6. Effective Date of this Agreement. The "Effective
Date" of this Agreement shall be the date of consummation of the Merger.
ARTICLE 2
Representations and Warranties
Each party represents (as to itself only) to the other parties
as follows:
Section 2.1. Organization. Such party is a corporation duly
organized, validly existing and (in the case of JSC and MSLEF) in good
standing under the laws of its jurisdiction of incorporation.
Section 2.2. Authority. Such party has all power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated on its part hereby. The execution, delivery and
performance by such party of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action (corporate, partnership or otherwise) on the part of such party. No
other action on the part of such party (or its stockholders or partners, if
applicable) is necessary to authorize the execution and delivery of this
Agreement by such party or the performance by such party of its obligations
hereunder. This Agreement has been duly executed and delivered by such party
and constitutes a legal, valid and binding agreement of such party,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
creditors' rights generally and subject to general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 2.3. No Violation. The execution and delivery of this
Agreement by such party, and the performance by such party of its obligations
hereunder and the consummation of the transactions contemplated hereby, will
not: (a) violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to such party, (b)
require the consent, waiver, approval, license or authorization or any filing
by such party with any governmental authority other than any filings required
under the 1934 Act or the laws, rules or regulations of the European Union, or
(c) assuming compliance with the matters referred to in clause (b), violate,
result (with or without notice or the passage of time, or both) in a breach of
or give rise to the right to accelerate, terminate or cancel any obligation
under or constitute (with or without notice or the passage of time, or both) a
default under, any of the terms or provisions of any charter, partnership
agreement or other governing document, bylaw, agreement, note, indenture,
mortgage, contract, order, judgment, ordinance, regulation or decree to which
such party is subject or by which such party is bound and which would have an
adverse effect on the ability of such party to perform its obligations under
this Agreement.
ARTICLE 3
Termination
Section 3.1. Termination. This Agreement may be terminated with
respect to MSLEF and its Subsidiaries or JSG and its Subsidiaries, as the case
may be, by mutual written agreement of MSLEF (in the case of a termination of
provisions binding on MSLEF and its Subsidiaries) or JSG (in the case of a
termination of provisions binding on JSG and its Subsidiaries), on the one hand,
and JSC, on the other hand, and in no other manner; provided that any such
written agreement of JSC shall be effective only if approved by a majority of
(i) Disinterested Directors with respect to MSLEF in the case of any termination
of obligations binding on MSLEF and its Subsidiaries or (ii) Disinterested
Directors with respect to JSG in the case of any termination of obligations of
JSG and its Subsidiaries. For purposes of this Section 3.1 and Section 4.4, (i)
"Disinterested Director with respect to MSLEF" shall mean a member of the JSC
Board of Directors who (x) was not designated by MSLEF (or any designees of
MSLEF) pursuant to the provisions of Exhibit E-2 to the Merger Agreement and (y)
would otherwise constitute an "Independent Director" (as such term is defined in
the provisions of Exhibit E-2 to the Merger Agreement, whether or not such
provisions are then in effect) vis-a-vis MSLEF and (ii) a "Disinterested
Director with respect to JSG" shall mean the member of the JSC Board of
Directors, if any, then designated by MSLEF or a member of the JSC Board of
Directors (other than the initial Chairman of the Board designated pursuant to
the provisions of Exhibit E-2) who (x) was not designated by JSG (or any
designees of JSG) pursuant to the provisions of Exhibit E-2 to the Merger
Agreement and (y) would otherwise constitute an "Independent Director" (as such
term is defined in the provisions of Exhibit E-2 to the Merger Agreement,
whether or not such provisions are then in effect) vis-a-vis JSG. In addition to
the foregoing, this Agreement shall terminate automatically in the event the
Merger Agreement terminates without consummation of the Merger.
Section 3.2. Effect of Termination. If this Agreement is
terminated pursuant to Section 3.1, all further obligations of the party
hereto whose obligations have been terminated under this Agreement shall
terminate without further liability or obligation of such party and JSC to
each other, including liability for damages; provided that such termination
shall not relieve any party hereto from liability for breach of this Agreement.
ARTICLE 4
Miscellaneous
Section 4.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to JSG to:
Jefferson Smurfit Group plc
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: Houghton Fry, Esq.
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
if to MSLEF, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Fund II, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Partners
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to JSC, to:
Jefferson Smurfit Corporation
Jefferson Smurfit Centre
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and
Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5 p.m. in
the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt.
Section 4.2. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter of this
Agreement.
Section 4.3. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors (including, in the case of JSG, any holding
company formed by or on behalf of JSG to hold, directly or indirectly, a
majority of the shares of JSG) and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
Section 4.4. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed (i) in the case of an amendment or waiver of any
provision binding on MSLEF and its Subsidiaries, by MSLEF and JSC and (ii) in
the case of an amendment or waiver of any provision binding on JSG and its
Subsidiaries, by JSG and JSC; provided that any such written agreement of JSC
shall be effective only if approved by (x) a majority of Disinterested
Directors with respect to MSLEF in the case of an amendment or waiver referred
to in clause (i), or (y) a majority of Disinterested Directors with respect to
JSG in the case of an amendment or waiver referred to in clause (ii).
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder 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 herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
Section 4.5. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New York, without
regard to the conflicts of law rules of the State of New York.
Section 4.6. WAIVER OF JURY TRIAL, ETC. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE PARTIES AGREE, SOLELY IN RESPECT OF THE
INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, TO SUBMIT
TO THE EXCLUSIVE JURISDICTION OF, AND TO WAIVE ANY OBJECTION AS TO VENUE IN,
THE FEDERAL OR STATE COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW
YORK. SERVICE OF PROCESS IN ANY ACTION ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE EFFECTIVE IF DELIVERED OR SENT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 4.1 HEREOF.
Section 4.7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other party hereto.
Section 4.8. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 4.9. Specific Performance; Enforcement. (a) The
parties hereto acknowledge that, in view of the uniqueness of the parties
hereto and the transactions contemplated hereby, the parties hereto would not
have an adequate remedy at law for money damages in the event that this
Agreement were not performed in accordance with its terms, and therefore agree
that the parties shall be entitled to specific enforcement of the terms hereof
in addition to any other remedy to which the parties hereto may be entitled at
law or in equity.
(b) The Disinterested Directors as to JSG shall have the authority
to enforce this Agreement as against JSG and the Disinterested Directors as to
MSLEF shall have the authority to enforce this Agreement as against MSLEF, in
each case for and on behalf of JSC without any other action by the Board of
Directors of JSC.
Section 4.10. Certain Definitions. For purposes of this
Agreement, (i) the term "beneficially own" (or any similar phrase) and the
terms "affiliates" and "associates" shall have the respective meanings set
forth in Rule 13d-3 under the 1934 Act; (ii) the term "Voting Securities"
shall mean any securities entitled to vote generally in the election of
directors of JSC or its successors, securities convertible or exchangeable
into or exchangeable for such securities and any rights or options to acquire
any of the foregoing securities; (iii) the term "Voting Power" shall mean the
power to vote generally in the election of directors (or persons serving
similar functions) of JSC or its successors; (iv) the term "Total Voting
Power" shall mean the total combined Voting Power of all Voting Securities
then outstanding; (v) the term "Subsidiary", with respect to any Person, shall
mean any corporation or other entity (a) of which a majority of the securities
or other ownership interests generally having voting power to elect a majority
of the board of directors or other individuals performing similar functions
are at the time directly or indirectly owned by such Person or (b) as to which
such Person directly or indirectly has the power to elect or designate such
majority of the board of directors or such other individuals; and (vi) the
term "Person" shall mean an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization. A Subsidiary shall not be deemed to beneficially own securities
held in a pension fund or non-profit foundation or trust controlled by the
Subsidiary.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
JEFFERSON SMURFIT GROUP PLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Finance Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEVERAGED EQUITY FUND II,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice Chairman
JEFFERSON SMURFIT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
