EXHIBIT 10(f)
Amended and Restated
VOTING AGREEMENT
Dated as of October 2, 1998
among
SMURFIT INTERNATIONAL B.V.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEVERAGED EQUITY FUND II, INC.
and
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
TABLE OF CONTENTS
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PAGE
ARTICLE 1
VOTING AND RELATED AGREEMENTS
SECTION 1.01. Definitions.....................................................2
SECTION 1.02. Election of Directors...........................................2
SECTION 1.03. Removal of Directors............................................2
SECTION 1.04. Replacement of the MSLEF Director...............................3
SECTION 1.05. Charter or Bylaw Amendments.....................................3
SECTION 1.06. Written Consents................................................3
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Organization....................................................3
SECTION 2.02. Authority.......................................................4
SECTION 2.03. No Violation....................................................4
ARTICLE 3
TERMINATION
SECTION 3.01. Termination.....................................................4
SECTION 3.02. Effect of Termination...........................................5
SECTION 3.03. MSLEF Withdrawal................................................5
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Notices.........................................................6
SECTION 4.02. Entire Agreement................................................7
SECTION 4.03. Successors and Assigns..........................................7
SECTION 4.04. Amendments and Waivers..........................................8
SECTION 4.05. Governing Law...................................................8
SECTION 4.06. WAIVER OF JURY TRIAL, ETC.......................................8
SECTION 4.07. Counterparts....................................................9
SECTION 4.08. Captions........................................................9
SECTION 4.09. Specific Performance............................................9
SECTION 4.10. Beneficial Ownership............................................9
SECTION 4.11. Reclassifications, etc..........................................9
Amended and Restated
VOTING AGREEMENT
Amended and Restated VOTING AGREEMENT dated as of October 2, 1998
(this "Agreement") among Smurfit International B.V., a corporation
organized under the laws of the Netherlands ("SIBV"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Leveraged Equity Fund II, Inc., a Delaware corporation ("MSLEF"), and ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇").
W I T N E S S E T H
WHEREAS, the parties hereto have heretofore entered into the Voting
Agreement dated as of May 10, 1998 (the "Original Agreement") concurrently with
the execution by Jefferson Smurfit Corporation, a Delaware corporation ("JSC"),
and Stone Container Corporation, a Delaware corporation ("Stone"), of an
Agreement and Plan of Merger dated as of May 10, 1998 as amended on October 2,
1998 (the "Merger Agreement"), providing for the merger (the "Merger") of
Stone with JSC Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of JSC ("Merger Sub");
WHEREAS, following the consummation of the Merger, SIBV, MSLEF and ▇▇.
▇▇▇▇▇ (each, a "Shareholder" and, together, the "Shareholders") will
beneficially own (as defined in Section 4.10) shares of common stock, par value
$0.01 per share ("Common Stock"), of JSC; and
WHEREAS, in connection with the Merger, the name of JSC is being
changed to Smurfit-Stone Container Corporation ("SSCC") and the Certificate of
Incorporation of JSC (the "SSCC Charter") and the Bylaws of JSC (the "SSCC
Bylaws") are being amended and restated to reflect certain agreements reached by
the parties to the Merger Agreement with respect to certain corporate governance
matters; and
WHEREAS, the parties hereto wish to enter into this Agreement to amend
and restate the Original Agreement as provided herein in order to implement
fully such SSCC Charter and SSCC Bylaws provisions and certain other corporate
governance matters;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
VOTING AND RELATED AGREEMENTS
SECTION 1.01. Definitions. Capitalized terms contained herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
SSCC Bylaws.
SECTION 1.02. Election of Directors. (a) Each Shareholder agrees that,
at any meeting of SSCC stockholders at which directors are to be elected, such
Shareholder will vote or cause to be voted all shares of Common Stock
beneficially owned by such Shareholder or its subsidiaries entitled to vote
thereon, in favor of (i) the persons designated for nomination by the Nominating
Committees pursuant to the SSCC Bylaws and (ii) subject to paragraph (b) below,
if ▇▇. ▇▇▇▇▇ has not been designated for nomination by any of the Nominating
Committees, ▇▇ ▇▇▇▇▇.
(b) The obligation of the Shareholders to vote in favor of the
election of ▇▇. ▇▇▇▇▇ as a director pursuant to clause (ii) of paragraph (a)
above, shall (i) be subject to the right of the Shareholders to vote for the
removal of ▇▇. ▇▇▇▇▇ for Cause (pursuant to Section 1.03(a) hereof), (ii) be
limited to voting for ▇▇. ▇▇▇▇▇ as an individual and shall not confer on any
person or entity (other than as provided in the SSCC Bylaws) the right to
designate any replacement for ▇▇. ▇▇▇▇▇ if he ceases to serve on the Board for
any reason and (iii) terminate and be of no further force or effect if ▇▇. ▇▇▇▇▇
is removed as CEO for Cause or if ▇▇.
▇▇▇▇▇ has reached the age of 72.
SECTION 1.03. Removal of Directors. (a) Subject to paragraph (b) below,
each Shareholder agrees that it will not vote (or will cause not to be voted)
any shares of Common Stock beneficially owned by such Shareholder or its
subsidiaries in favor of the removal from the SSCC Board of Directors (the
"Board") of any director designated for nomination or appointed to the Board by
any of the Nominating Committees or designated for nomination by MSLEF pursuant
to Section 1.04 hereof, unless such removal is for Cause.
(b) Notwithstanding paragraph (a) above, if at any time MSLEF
beneficially owns less than the MSLEF Threshold Amount of Shares and if at such
time there is a MSLEF Director, each Shareholder agrees that, at the request of
either of the other Shareholders, it will vote (or will cause to be voted) all
shares of Common Stock beneficially owned by such Shareholder or its
subsidiaries in favor of (i) calling a Special Meeting for the purpose of
removing the MSLEF Director and (ii) removing the MSLEF Director from the Board
at such Special Meeting.
SECTION 1.04. Replacement of the MSLEF Director. Provided that MSLEF
has at no time beneficially owned less than the MSLEF Threshold Amount of
Shares, if at any time there is no MSLEF Director on the Board, then each
Shareholder agrees that it will vote (or will cause to be voted) all shares of
Common Stock beneficially owned by such Shareholder or its subsidiaries in favor
of:
(i) calling a Special Meeting for the purposes of removing an
Unaffiliated Director (if any) and replacing such Unaffiliated Director
(or filling the vacancy left by the MSLEF Director) with a person
designated by MSLEF to serve as the MSLEF Director on the Board; and
(ii) at such Special Meeting (x) removing such Unaffiliated
Director (if any), (y) electing to the Board the person designated by
MSLEF and (z) designating such person as the "MSLEF Director" on the
Board.
SECTION 1.05. Charter or Bylaw Amendments. No party hereto shall vote
in favor of any resolution by any stockholder which seeks to alter, amend,
repeal, in whole or in part, or adopt any provision inconsistent with either (i)
the provisions set forth in Article 5 of the SSCC Bylaws or (ii) the provisions
set forth in the SSCC Charter requiring the affirmative vote of stockholders
holding at least 75% of the voting power of SSCC's outstanding capital stock.
SECTION 1.06. Written Consents. The provisions of Sections 1.01 through
1.05 shall apply, mutatis mutandis, in the event that any stockholder action is
taken by written consent in lieu of a stockholder meeting.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Each party hereto represents (as to itself only) to the other parties
hereto as follows:
SECTION 2.01. Organization. Each of SIBV and MSLEF is a corporation
duly organized, validly existing and, in the case of MSLEF, in good standing
under the laws of its jurisdiction of incorporation.
SECTION 2.02. 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 2.03. 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
Exchange Act 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 3.01. Termination. (a) This Agreement may be terminated by
mutual written agreement of the Shareholders.
(b) The obligations of the parties hereto set forth in Article 1 shall
terminate on the Article 5 Termination Date, provided that the obligations of
the parties hereto (i) which relate to MSLEF, the MSLEF Director or the MSLEF
Committee (including, but not limited to, the obligations set forth in Sections
1.02, 1.03, and 1.04 as they relate to the MSLEF Committee or the MSLEF
Director) shall survive for so long as MSLEF owns at least the MSLEF Threshold
Amount of Shares and (ii) pursuant to Section 1.02(a)(ii) and Section 1.02(b),
shall survive until the earlier of ▇▇. ▇▇▇▇▇'▇ death or ▇▇. ▇▇▇▇▇ reaching the
age of 72.
(c) The obligation of any Shareholder to vote or cause to be voted
shares of Common Stock in favor of a person designated by MSLEF or the MSLEF
Committee and against the removal of any MSLEF Director may be terminated with
respect to such Shareholder by mutual written agreement of such Shareholder and
MSLEF.
(d) The obligation of any Shareholder to vote or cause to be voted
shares of Common Stock, in favor of a person designated for nomination by the
JSC Committee and against the removal of any JSC Director may be terminated with
respect to such Shareholder by mutual written agreement of such Shareholder and
SIBV.
(e) The obligation of any Shareholder to vote or cause to be voted
shares of Common Stock in favor of, or against the removal of, ▇▇. ▇▇▇▇▇ as a
director may be terminated with respect to such Shareholder by mutual written
agreement of such Shareholder and ▇▇. ▇▇▇▇▇.
SECTION 3.02. Effect of Termination. If this Agreement is terminated in
whole or in part (i) pursuant to Section 3.01(a) or (b), all further obligations
of the parties hereto under this Agreement shall terminate without further
liability or obligation of any party to any other party, including liability for
damages or (ii) pursuant to Sections 3.01(c), 3.01(d), 3.01(e) or 3.03 of this
Agreement, such obligations as are specified in such sections shall so
terminate; provided that any such termination shall not relieve any party hereto
from liability for breach of this Agreement.
SECTION 3.03. MSLEF Withdrawal. MSLEF shall have the right, upon at
least two days' notice to the other parties hereto, to terminate all of its
rights and obligations under this Agreement, provided that at such time, (i)
MSLEF beneficially owns less than three percent of the voting power of the
capital stock of SSCC issued and outstanding and entitled to vote and (ii) the
MSLEF Committee, by resolution, permanently waives its right to designate a
director to serve on the Compensation Committee.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
if to SIBV to:
Smurfit International ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 1077ZZ, The Netherlands
Attention: Rokin Corporate Services B.V.
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 ▇▇. ▇▇▇▇▇, to:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Stone Container Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
8000 Sears Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 4.02. 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 including, without limitation, the Original Agreement.
SECTION 4.03. 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 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. Without limiting the foregoing,
in the event SIBV or any of its subsidiaries transfers any shares of Common
Stock to Jefferson Smurfit Group plc ("JSG") or any other subsidiary of JSG
(other than SIBV and its subsidiaries), it shall cause JSG or such other
subsidiary to agree to be bound as a Shareholder by all provisions of this
Agreement including this sentence with respect to subsequent transfers of shares
to JSG or any subsidiary of JSG. For purposes of this Agreement, "subsidiary"
means, with respect to any person or entity (a "Person"), any corporation or
other organization, whether incorporated or unincorporated, (i) of which
directly or indirectly a majority of the securities or other interests having by
their terms ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions with respect to such corporation
or other organization is directly or indirectly owned or controlled by such
Person or by any one or more of its subsidiaries, or by such Person and one or
more of its subsidiaries or (ii) 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 persons performing such functions.
SECTION 4.04. 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, in the case of an amendment, by all Shareholders, or
in the case of a waiver, by the party as to whose rights the waiver is to be
effective.
(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 4.05. 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 4.06. 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 4.01 HEREOF.
SECTION 4.07. 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 4.08. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 4.09. Specific Performance. 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.
SECTION 4.10. Beneficial Ownership. For purposes of this Agreement, the
phrase "beneficially own" (or any similar phrase) shall have the meaning set
forth in Rule 13d-3 under the Exchange Act. An entity shall not be deemed to
beneficially own securities held in a pension trust or non-profit foundation or
trust controlled by such entity.
SECTION 4.11. Reclassifications, etc.. The provisions of this Agreement
applicable to shares of Common Stock shall also apply, mutatis mutandis, to all
voting securities of SSCC from time-to-time beneficially owned by any
Shareholder, whether as a result of a reclassification, recapitalization,
dividend or otherwise.
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.
SMURFIT INTERNATIONAL B.V.
By: Rokin Corporate Services B.V.,
its Managing Director
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ de Boer
Title: Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEVERAGED
EQUITY FUND II, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice Chairman
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
