Exhibit 10.2(b)
FIRST AMENDMENT TO STOCKHOLDERS AGREEMENT
This First Amendment to Stockholders Agreement, dated as
of January 13, 1997 (this "Amendment"), among SMURFIT INTERNATIONAL
B.V., a corporation organized under the laws of The Netherlands
("SIBV"), THE XXXXXX XXXXXXX LEVERAGED EQUITY FUND II, L.P., a
Delaware limited partnership ("MSLEF II"), JEFFERSON SMURFIT
CORPORATION (formerly known as "SIBV/MS HOLDINGS, INC."), a
Delaware corporation (the "Company") and the other parties
identified on the signature pages hereto.
WHEREAS, the parties to this Amendment are parties to
that certain Stockholders Agreement dated as of May 3, 1994
("Stockholders Agreement");
WHEREAS, the parties hereto desire to amend the
Stockholders Agreement as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration the
parties hereto agree as follows:
1. Section 1.1 of the Stockholders Agreement is hereby
amended as follows:
(a) The definition of "CCA" shall be deleted in its
entirety;
(b) The following definitions are hereby added:
"JSCE" shall mean JSCE, Inc., a Delaware
corporation, which is a wholly-owned subsidiary of the
Company.
"JSC" shall mean Jefferson Smurfit Corporation
(U.S.), a Delaware corporation, which is a wholly-owned
subsidiary of JSCE.
2. The Stockholders Agreement is hereby amended to
substitute "JSCE" for "CCA" wherever it appears in the Stockholders
Agreement.
3. Section 2.2(a) of the Stockholders Agreement through
clause (4) thereof is hereby amended to read in its entirety as
follows:
"2.2 Election of Directors.
(a) From and after the Closing Date, each Investor shall
vote all shares of Common Stock subject to this Agreement which it
owns and all shares of Common Stock subject to this Agreement as to
which it has the right to exercise sole voting power, at any
regular or special meeting of the stockholders called for the
purpose of filling positions on the Board of Directors of the
Company, and shall take all actions necessary and within their
control, to ensure the election to the Board of Directors of the
Company of the following ten individuals (and no greater number
unless SIBV, MSLEF II and the Company agree otherwise):
(1) In the event that (A) (x) the MS Holders
collectively own more than 10% of the outstanding Common Stock
or SIBV owns less than 25% of the outstanding Common Stock and
(y) MSLEF II, MSLEF II, Inc., Equity Investors and Equity
Investors, Inc., and any Affiliate of any of the foregoing,
shall not have collectively received, without duplication, at
least $320 million in cash or in Value of Other Property (as
such terms are defined below), including for purposes of this
provision amounts received by partners of MSLEF II or Equity
Investors by reason of Partnership Distributions (as defined
below) whether or not such partners are MS Holders, or a
combination thereof (the "Initial Return"), either as
dividends or as a result of sales of shares of Common Stock
subject to this Agreement or Partnership Distributions by
MSLEF II or Equity Investors ("Tier 1") or (B) (x) the MS
Holders collectively own 30% or more of the outstanding Common
Stock or shall, regardless of MSLEF II's ownership percentage,
collectively own a greater number of voting shares than SIBV
and (y) the MS Holders shall have collectively received the
Initial Return ("Tier 2"): (i) five individuals selected by
SIBV (the "SIBV Nominees"), one of whom shall be the Chief
Executive Officer of the Company and one of whom shall not be
affiliated with SIBV, the Company, JSC or JSCE in accordance
with, and as defined by, the rules of the New York Stock
Exchange, Inc. (a "SIBV Unaffiliated Director"), such SIBV
Unaffiliated Director to be reasonably acceptable to MSLEF II;
and (ii) five individuals selected by MSLEF II (the "MSLEF II
Nominees" and collectively with the SIBV Nominees, the
"Nominees"), one of whom shall not be affiliated with MSLEF
II, the Company, JSC or JSCE in accordance with, and as
defined by, the rules of the New York Stock Exchange, Inc. (a
"MSLEF II Unaffiliated Director"), such MSLEF II Unaffiliated
Director to be reasonably acceptable to SIBV;
(2) In the event that (x) the MS Holders
collectively own 20% or more and less than 30% of the
outstanding Common Stock and (y) the MS Holders shall have
collectively received the Initial Return ("Tier 3"): (i) five
SIBV Nominees, one of whom shall be the Chief Executive
Officer of the Company and (ii) five MSLEF II Nominees, two of
whom shall be MSLEF II Unaffiliated Directors reasonably
acceptable to SIBV;
(3) In the event that (x) the MS Holders
collectively own 7 1/2% or more and less than 20% of the
outstanding Common Stock and (y) the MS Holders shall have
collectively received the Initial Return ("Tier 4"): (i) five
SIBV Nominees, one of whom shall be the Chief Executive
Officer of the Company, and (ii) five MSLEF II Nominees, two
of whom shall be MSLEF II Unaffiliated Directors reasonably
acceptable to SIBV; and
(4) In the event that (x) the MS Holders
collectively own 6% or more and less than 7 1/2% of the
outstanding Common Stock and (y) the MS Holders shall have
collectively received the Initial Return ("Tier 5"): (i) five
SIBV Nominees, one of whom shall be the Chief Executive
Officer of the Company, (ii) two MSLEF II Nominees (who need
not be MSLEF II Unaffiliated Directors), and (iii) three
persons (not affiliated with SIBV or MSLEF II in accordance
with, and as defined by, the rules of the New York Stock
Exchange, Inc.) nominated by the Board of Directors of the
Company, each of whom shall be reasonably acceptable to MSLEF
II and SIBV."
The last two paragraphs of Section 2.2(a) of the
Stockholders Agreement are not amended by this Amendment.
4. Section 2.2(g) of the Stockholders Agreement is
hereby amended to read in its entirety as follows:
"(g) The initial six directors of the Company, and their
respective classes, are set forth on Schedule II attached hereto.
As soon as practicable after the Closing, but in any event within
six months thereafter, SIBV shall designate the SIBV Unaffiliated
Director and MSLEF II shall designate the MSLEF II Unaffiliated
Director and the Investors shall use their best efforts to cause
their respective Nominees on the Company's Board of Directors to
appoint such designees to such board. The two directors of the
Company to be nominated after execution of the First Amendment to
the Stockholders Agreement increasing the total number of directors
from eight to ten shall become Class III directors."
5. The addresses set forth in Section 8.2 of the
Stockholders Agreement for MSLEF II, Equity Investors, MSLEF II,
Inc., Equity Investors, Inc. and the Company, JSC or JSCE is hereby
amended as follows:
If to MSLEF II,
Equity Investors,
MSLEF II, Inc. or
Equity Investors,
Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:_______________________
If to the Company,
JSC or JSCE
c/o Jefferson Smurfit Corporation
Jefferson Smurfit Centre
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx,
President and Chief Executive
Officer
6. Counterparts. This Amendment may be executed in any number
of counterparts with the same effect as if all of the parties had signed the
same document. All counterparts shall be construed together and shall
constitute one and the same instrument.
7. Full Force and Effect. Except as specifically amended by
this Amendment all other terms and provisions of the Stockholders Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
SMURFIT INTERNATIONAL B.V.
By: Rokin Corporate Services B.V.
(Managing Director)
By:_______________________________ and
Name:
Title:
By:____________________________________
Name:
Title:
THE XXXXXX XXXXXXX LEVERAGED
EQUITY FUND, II, L.P.
By: Xxxxxx Xxxxxxx Leveraged
Equity Fund II, Inc.
(General Partner)
By:____________________________________
Name:
Title:
SIBV/MS EQUITY INVESTORS, L.P.
By: Xxxxxx Xxxxxxx Equity Investors,Inc.
(General Partner)
By:____________________________________
Name:
Title:
XXXXXX XXXXXXX LEVERAGED
EQUITY FUND II, INC.
By:____________________________________
Name:
Title:
XXXXXX XXXXXXX EQUITY
INVESTORS, INC.
By:____________________________________
Name:
Title:
FIRST PLAZA GROUP TRUST
By: Mellon Bank, N.A., as trustee (as
directed by General Motors
Investment Management
Corporation)
By:____________________________________
Name:
Title:
LEEWAY & CO.
By:____________________________________
Name:
Title:
JEFFERSON SMURFIT CORPORATION
By:____________________________________
Name:
Title:
JEFFERSON SMURFIT CORPORATION (U.S.)
By:____________________________________
Name:
Title:
JSCE, INC.
By:____________________________________
Name:
Title:
