EXHIBIT 10.13
AMENDED AND RESTATED
CORPORATE GOVERNANCE AGREEMENT
THIS AMENDED AND RESTATED CORPORATE GOVERNANCE AGREEMENT is made as of
September 5, 2002, among MDCP Acquisitions plc, a public limited company
incorporated under the laws of Ireland (the "COMPANY"), each of the MDCP
Co-Investors, Dr. ▇▇▇▇▇▇▇ ▇.▇. Smurfit ("MWJS"), ▇▇▇▇ ▇▇▇▇▇▇ ("GMCG"), ▇▇▇▇▇▇▇
Smurfit ("APJS"), ▇▇▇ ▇▇▇▇▇▇ ("IJC"), and each of the Persons listed on the
SCHEDULE OF OTHER INVESTORS attached hereto (each, an "OTHER INVESTOR" and
collectively, the "OTHER INVESTORS"). MWJS, GMcG, APJS and IJC are collectively
referred to herein as the "MANAGEMENT INVESTORS" and individually as a
"MANAGEMENT INVESTOR". The Other Investors and the Management Investors are
collectively referred to herein as "MINORITY INVESTORS" and in the singular as a
"MINORITY INVESTOR." The MDCP Co-Investors and the Minority Investors are
collectively referred to herein as the "INVESTORS" and in the singular as an
"INVESTOR". Except as otherwise indicated herein, capitalized terms used herein
are defined in Section 3 hereof.
WHEREAS, MDCP Acquisitions I is making the Take-Over Offer; and
WHEREAS, the Investors propose to enter into this Agreement in order
to establish certain governance provisions relating to the Company and its
Subsidiaries; and
WHEREAS, this Agreement amends and restates in its entirety that
certain Corporate Governance Agreement, dated as of July 4, 2002, by and among
the Company and certain of the Investors (the "EXISTING AGREEMENT").
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. VOTING. From and after the date that the Take-Over Offer has
become or been declared unconditional in all respects (the "EFFECTIVE DATE") and
until the provisions of this Section 1 cease to be effective, each Investor
shall vote all of his Ordinary Shares and any other voting securities of the
Company over which such Investor has voting control and shall take all other
reasonably necessary or desirable actions within his control in his capacity as
a stockholder of the Company only (including, without limitation, attendance at
meetings in person or by proxy for purposes of obtaining a quorum and execution
of written consents in lieu of meetings), and the Company shall take all
reasonably necessary or desirable actions within its control (including, without
limitation, calling special board and stockholder meetings), so that:
1A. AUTHORIZED NUMBER. The authorized number of directors on the Company's
Board of Directors (the "BOARD") shall initially be established at nine (9)
directors;
1B. BOARD COMPOSITION. The following individuals shall be elected to the
Board:
(i) four representatives designated by MDCP IV Global Investments LP
(the "MDCP IV GLOBAL DIRECTORS");
(ii) MWJS;
(iii) GMcG;
(iv) APJS;
(v) IJC; and
(vi) one representative designated by MDCP III Global Investments LP
(the "MDCP III GLOBAL DIRECTOR").
1C. SUBSIDIARY BOARDS. At the election of the MDCP Co-Investor Majority
exercised at any time, the composition of the board of directors of all or any
of the of the Company's Subsidiaries (a "SUBSIDIARY BOARD") shall be the same
as, or as close to proportionately equivalent as possible to, that of the Board;
PROVIDED that, without limiting the generality of the foregoing, but subject to
any limitations under applicable law, at the request of any Management Investor,
such Management Investor shall be appointed to the board of directors of JSG or
any principal operating company of the Company.
1D. COMMITTEES. Any committees of the Board or a Subsidiary Board shall be
created only upon the approval of a majority of the members of the Board;
provided that any committee that is responsible for administration of the
Management Equity Plan shall ensure not make any determinations with respect
thereto prior to consulting with GMcG, and if GMcG no longer serves on the
Board, the Company's chief executive officer.
1E. REMOVAL.
(i) Until the rights of MDCP IV Global Investments LP to elect a
director pursuant to this Section 1 are terminated or unless a representative
becomes ineligible to serve as a director as a matter of law, the removal from
the Board or a Subsidiary Board (with or without cause) of any MDCP IV Global
Director shall be at the written request of MDCP IV Global Investments LP, but
only upon such written request and under no other circumstances. Until the
rights of MDCP IV Global Investments LP to elect a director pursuant to this
Section 1 are terminated or unless a representative becomes ineligible to serve
as a director as a matter of law, in the event that any MDCP IV Global Director
ceases to serve as a member of the Board, a Subsidiary Board or any committee
during his term of office, the resulting vacancy on the Board, the Subsidiary
Board or such committee shall be filled by a representative designated by MDCP
IV Global Investments LP as provided hereunder.
(ii) MWJS shall resign, or be removed as a member of the Board, any
Subsidiary Board and any committees by a vote of a majority of Ordinary Shares
then held by the Investors, as of any date after November 1, 2002 that he no
longer is employed as the chairman of the Company and its subsidiaries or JSG
and its subsidiaries (with it being understood that in the event that MWJS does
not resign, each Investor shall take any and all actions necessary to effectuate
such removal);
(iii) GMcG shall resign, or be removed as a member of the Board, any
Subsidiary Board and any committees by a vote of a majority of Ordinary Shares
then held by the Investors, as of any date after November 1, 2002 that he no
longer is employed as the chief executive officer of the Company and its
subsidiaries or JSG and its subsidiaries (with it being
understood that in the event that GMcG does not resign, each Investor shall take
any and all actions necessary to effectuate such removal);
(iv) APJS shall resign, or be removed as a member of the Board, any
Subsidiary Board and any committees by a vote of a majority of Ordinary Shares
then held by the Investors, as of any date after November 1, 2002 that he no
longer is employed as the chief operations officer of the Company and its
subsidiaries or chief operations officer of JSG and its subsidiaries (with it
being understood that in the event that APJS does not resign, each Investor
shall take any and all actions necessary to effectuate such removal); and
(v) IJC shall resign, or be removed as a member of the Board, any
Subsidiary Board and any committees by a vote of a majority of Ordinary Shares
then held by the Investors, as of any date after November 1, 2002 that he no
longer is employed as the chief financial officer of the Company and its
subsidiaries or chief financial officer of JSG and its subsidiaries (with it
being understood that in the event that IJC does not resign, each Investor shall
take any and all actions necessary to effectuate such removal).
(vi) Until the rights of MDCP III Global Investments LP to elect a
director pursuant to this Section 1 are terminated or unless a representative
becomes ineligible to serve as a director as a matter of law, the removal from
the Board or a Subsidiary Board (with or without cause) of the MDCP III Global
Director shall be at the written request of MDCP III Global Investments LP, but
only upon such written request and under no other circumstances. Until the
rights of MDCP III Global Investments LP to elect a director pursuant to this
Section 1 are terminated or unless a representative becomes ineligible to serve
as a director as a matter of law, in the event that the MDCP III Global Director
ceases to serve as a member of the Board, a Subsidiary Board or any committee
during his term of office, the resulting vacancy on the Board, the Subsidiary
Board or such committee shall be filled by a representative designated by MDCP
III Global Investments LP as provided hereunder.
1F. BOARD MEETINGS; EXPENSES. The Company shall hold not less than four
meetings per year of the Board and any Subsidiary Board in which the Management
Investors have exercised rights pursuant to paragraph 1C hereof. Unless
otherwise determined by the Board, three such board meetings per annum shall
take place in Dublin, Ireland and one such board meeting per annum shall take
place in Chicago, Illinois; PROVIDED that the Company shall use reasonable
efforts to coordinate the date of any Company board meeting to occur in Chicago
around the date that there is a board meeting for Smurfit-Stone Container
Corporation in order to maximize cost savings. The Company shall pay the
reasonable out-of-pocket expenses incurred by each director in connection with
attending the meetings of the Board, any Subsidiary Board and any committee
thereof. To the extent practicable, the Company shall distribute any agendas,
reports or other materials to be reviewed or covered at any meeting of the Board
prior to the meeting of the Board.
1G. REPLACEMENT OF MWJS, GMCG, APJS AND IJC. Subject to the rights of any
such Person to appoint a Purchased Equity Director pursuant to paragraph 1I, in
the event that any of MWJS, GMcG, APJS or IJC is removed or resigns from the
Board, any Subsidiary Board or any committee thereof, MDCP IV Global Investments
LP shall be entitled to appoint any replacement director. Unless otherwise
agreed to in writing by MDCP IV Global Investments LP, any such director
appointed by MDCP IV Global Investments
LP pursuant to this paragraph 1G shall be deemed an additional MDCP IV Global
Director for purposes of this Agreement.
1H. INCREASE IN SIZE OF THE BOARD. At the election of MDCP IV Global
Investments LP, the authorized number of directors on the Board may be increased
to no more than thirteen directors. In the event that the size of the Board is
increased in accordance with this paragraph 1H, MDCP IV Global Investments LP
shall be entitled to appoint any individuals to serve as directors as a result
of the increase in the size of the Board. Unless otherwise agreed to in writing
by MDCP IV Global Investments LP, any such director appointed by MDCP IV Global
Investments LP pursuant to this paragraph 1H shall be deemed an additional MDCP
IV Global Director for purposes of this Agreement.
1I. PURCHASED EQUITY DIRECTOR. Each Purchased Equity Holder who,
together with his Affiliates and/or Family Group, owns (i) prior to a Listing,
Ordinary Shares, as of any date of determination, with an aggregate investment
cost (i.e., subscription price or purchase price paid for Ordinary Shares plus
any other amounts contributed to or invested in the Company not specifically for
the acquisition of Ordinary Shares or loans made to the Company) of not less
than E50,000,000 or (ii) on and after a Listing, (x) a number of Ordinary
Shares, which when multiplied by the per share listing price on the securities
market on which the Ordinary Shares are listed, has an aggregate value equal to
not less than E50,000,000 or (y) Ordinary Shares with an aggregate investment
cost (i.e., subscription price or purchase price paid for Ordinary Shares plus
any other amounts contributed to or invested in the Company not specifically for
the acquisition of Ordinary Shares or loans made to the Company) of not less
than 50% of the aggregate investment cost (i.e., subscription price or purchase
price paid for Ordinary Shares plus any other amounts contributed to or invested
in the Company not specifically for the acquisition of Ordinary Shares or loans
made to the Company) of the Ordinary Shares held by such Purchased Equity Holder
and his or its Affiliates and Family Group as of the Settlement Date, then such
Purchased Equity Holder or (if such holder is an individual), upon such holder's
death, a descendant of such Purchased Equity Holder (any such Person, an
"ELIGIBLE PURCHASED EQUITY HOLDER") shall have the right to appoint one member
of the Board (a "PURCHASED EQUITY DIRECTOR"). The condition specified in clauses
(i) and (ii) of this paragraph 1I are referred to herein as the "MINIMUM
INVESTMENT CONDITION." Until such date as the applicable Minimum Investment
Condition has no longer been satisfied or unless a Purchased Equity Director
becomes ineligible to serve as a director as a matter of law, the removal from
the Board, a Subsidiary Board or any committee (with or without cause) of any
Purchased Equity Director shall be at the written request of the appointing
Eligible Purchased Equity Holder, but only upon such written request and under
no other circumstances; PROVIDED that in the event that a Purchased Equity
Director (without the consent of the Board) becomes an employee of, serves as a
director of, or otherwise provides services for, any Person (other than
Smurfit-Stone Container Corp. and its Subsidiaries) that competes with a
material business of the Group Companies, such Purchased Equity Director shall
be removed upon the written request of MDCP IV Global Investments LP. Until the
rights of any Eligible Purchased Equity Holder to elect a director pursuant to
this paragraph 1I are terminated or unless a Purchased Equity Director becomes
ineligible to serve as a director as a matter of law, in the event that any
Purchased Equity Director ceases to serve as a member of the Board, a Subsidiary
Board or any committee during his term of office, the resulting vacancy on the
Board, the Subsidiary Board or such committee shall be filled by a
representative designated by the Eligible Purchased Equity Holder originally
appointing such Purchased Equity Director as provided hereunder. As of and after
the date that any Eligible Purchased Equity Holder ceases to satisfy the
applicable Minimum Investment Condition or the Purchased Equity Director has
become ineligible to serve as a director as a matter of law, at the election of
MDCP IV Global Investments LP, the Purchased Equity Director shall resign or be
removed from the Board, and the Investors shall take all actions to remove such
Purchased Equity Director. In the event that the Purchased Equity Director
resigns or is removed as a result of an Eligible Purchased Equity Holder's
failure to satisfy the Minimum Investment Condition, MDCP IV Global Investments
LP shall be entitled to appoint any individuals to serve as directors as a
result of the resignation or removal of the Purchased Equity Director. Unless
otherwise agreed to in writing by MDCP IV Global Investments LP, any such
director appointed by MDCP IV Global Investments LP pursuant to this paragraph
1I shall be deemed an additional MDCP IV Global Director for purposes of this
Agreement. Notwithstanding anything else to the contrary in this paragraph 1I,
(A) in no event shall any Purchased Equity Holder have any rights pursuant to
clause (ii) of this paragraph 1I unless such Purchased Equity Holder at some
point prior to a Listing satisfied the condition specified in clause (i) hereof,
(B) Purchased Equity Holders, in the aggregate and subject to the conditions set
forth in this paragraph 1I, shall not be able to appoint more than one Purchased
Equity Director to serve on the Board at any one time, and (C) in no event shall
any Purchased Equity Holder have any right to appoint a Purchased Equity
Director at a time when such Person is a member of the Board, has nominated a
member of the Board, and has the right by contract (other than this paragraph
1I), operation of law or sufficient voting power through ownership of Ordinary
Shares to elect, appoint or nominate a member of the Board.
1J. PROCESS. Any appointment or removal of a director shall be effected by
delivery to the Company's registered office of written notice signed by the
Investor or Investors making such appointment or removal and shall take effect
upon such delivery or, if later, any effective date stated in the notice.
Section 2. CERTAIN GOVERNANCE RIGHTS.
2A. AFFILIATE TRANSACTIONS. The Company shall not, without the prior
consent of its Board (including, as long as any such Person serves on the Board,
at least one Management Investor or if no Management Investor serves on the
Board, the Purchased Equity Director as long as such individual serves on the
Board), from and after the Effective Date, enter into, or permit any Subsidiary
to enter into, any transaction with any Person or group of related Persons that
are not Independent Third Parties (each, an "AFFILIATED PERSON") or with any
Person in which any such Affiliated Person owns more than a 25% beneficial
interest; PROVIDED that the consent of any Management Investor or the Purchased
Equity Director shall not be required with respect to contracts in the ordinary
course of business of the Company or its Subsidiaries or contracts that are
negotiated on an arm's-length basis and are on terms which are commercially
reasonable.
2B. ACCOUNTING POLICIES. The Company shall not for purposes of calculating
or determining whether any management incentive target had been achieved or
satisfied, change any accounting policy of the Company in a manner that would
adversely affect the calculation of any management incentive target or
performance; PROVIDED that the Company may change such accounting policy if,
under the supervision of the Board, management incentive targets or bonuses are
calculated or using the former accounting policy.
2C. AFFIRMATIVE COVENANTS. From and after the Effective Date, the Company
covenants to the Management Investors that it shall:
(i) permit any representatives designated by the Management Investors,
upon reasonable notice and during normal business hours and such other times as
the Management Investors may reasonably request, to (a) visit and inspect any of
the properties of the Company and its Subsidiaries, (b) examine the corporate
and financial records of the Company and its Subsidiaries and (c) discuss the
affairs, finances and accounts of any such Persons with the directors, officers,
key employees and independent accountants of the Company and its Subsidiaries;
PROVIDED that the Company shall have the right to have a member of the Board or
a representative of the Board present in connection with the exercise of rights
by the Management Investors pursuant to this paragraph 2C(i); PROVIDED further
that all of the information disclosed to the Management Investors or their
representatives pursuant to this paragraph 2C(i) shall be treated as
confidential and shall not be disclosed to any third Person (and the Management
Investors and their representatives shall, at the request of the Company,
execute customary confidentiality agreements in respect thereof, prior to
gaining access to any such information);
(ii) have issued the entire equity interests available for issuance
under the Company's Management Equity Plan to members of the management of JSG
or other persons recommended by the Company's chief executive officer;
(iii) allocate all equity interests under the Company's Management
Equity Plan not later than 120 days after the Effective Date and only after
receiving the recommendation of the Company's chief executive officer as to how
such equity interests should be allocated (with it being understood that the
Company shall not unreasonably withhold its approval or unnecessarily delay its
decision with respect to such recommendations); and
(iv) reallocate equity interests purchased from departing members of
management in the manner determined by the Company's chief executive officer in
consultation with the Company's Compensation Committee as to how such equity
interests should be reallocated (which consultation may occur after the
reallocation has occurred); PROVIDED that notwithstanding this clause (iv), no
equity interests may be reallocated to any Management Investor or its successors
or assigns without the consent of the Company's Compensation Committee.
Section 3. DEFINITIONS.
"AFFILIATE" means, with respect to any Person, any Person controlling,
controlled by or under common control with, such Person.
"FAMILY GROUP" means, with respect to any Person, such Person's spouse,
siblings, descendants and siblings' descendants (and any trust solely for the
benefit of such Person, his spouse, siblings, descendants and siblings'
descendants).
"5% OWNER" means any Person that owns 5% or more of the Company's Ordinary
Shares on a fully-diluted basis.
"INDEPENDENT THIRD PARTY" means any Person who, immediately prior to the
contemplated transaction, is not a 5% Owner, is not controlling, controlled by
or under common control with any 5% Owner and is not the spouse or descendent
(by birth or adoption) of any 5% Owner.
"JSG" means Jefferson Smurfit Group plc, an Irish public limited company.
"LISTING" means the admission of all or any part of the Ordinary Shares to
the Official List of The Irish Stock Exchange Limited or the Official List of
the UK Listing Authority, and to trading on the market for listed securities of
the London Stock Exchange or to trading on the Alternative Investment Market or
the taking effect of any granting of permission to deal in the same on any
recognized investment exchange (as that term is used in the Financial Services
Act 1986) or the registration of all or any of the Ordinary Shares (or
equivalent securities of any Subsidiary or American Depository Receipts with
respect to any of the forgoing) on Form F-1, F-2 or F-3 (or any similar
long-form or short-form registrations) pursuant to the United States Securities
Act of 1933 (as amended) or any similar US federal law, or any similar listing
or registration by the Company of the Ordinary Shares on the public stock
exchange or securities market in any other jurisdiction.
"MDCP CO-INVESTOR MAJORITY" means the holders of a majority of the Ordinary
Shares held by all MDCP Co-Investors.
"MDCP CO-INVESTORS" means, collectively, MDCP IV Global Investments LP,
MDCP III Global Investments LP, MDSE III Global Investments LP and any Affiliate
of the foregoing that owns or holds Ordinary Shares as of the date of
determination and "MDCP Co-Investor" means any of the MDCP Co-Investors.
"ORDINARY SHARES" means the Company's Ordinary Shares, having the rights
set forth in the Company's Articles of Association.
"PERSON" means an individual, a partnership, a limited liability company an
unlimited liability company, a company limited by guarantee, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"PURCHASED EQUITY HOLDER" means any Person party to the Existing Agreement
that has acquired Ordinary Shares on or before the Settlement Date.
"SALE OF THE COMPANY" means the sale of the Company to an Independent Third
Party or affiliated group of Independent Third Parties pursuant to which such
party or parties acquire (i) capital stock of the Company possessing the voting
power to elect a majority of the Company's board of directors (whether by
merger, consolidation or sale or transfer of the Company's capital stock) or
(ii) all or substantially all of the Company's assets determined on a
consolidated basis.
"SETTLEMENT DATE" means the date for settlement of consideration after the
date that the Take-Over Offer has become or been declared unconditional in all
respects
"SUBSIDIARY" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that person
or a combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control the
managing general partner of such limited liability company, partnership,
association or other business entity. Reference to any "Subsidiary" of the
Company shall be given effect only at such times as the Company has one or more
Subsidiaries.
"TAKE-OVER OFFER" means an offer for the entire issued and to be issued
share capital of JSG made by the Company or one of its Subsidiaries.
Section 4. MISCELLANEOUS.
4A. REMEDIES. Each of the parties to this Agreement shall be entitled to
enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages would not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party may in its sole discretion apply to an court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
4B. CONSENT TO AMENDMENTS. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holders of a majority of the Ordinary Shares then held by Investors and their
permitted transferees; provided that if any such amendment, modification or
waiver would negatively affect (i) any Investor in an adversely discriminatory
manner relative to the other Investors voting in favor of such amendment,
modification, or waiver, such amendment, modification or waiver shall be
effective against any Investor adversely affected only with the written consent
of such Investor, (ii) the Management Investors in an adversely discriminatory
manner relative to the other Investors, such amendment, modification or waiver
shall be effective against any Management Investor adversely affected only with
the written consent of such Management Investor or with the written consent of a
majority of the Management Investors or (iii) the Minority Investors in an
adversely discriminatory manner relative to the MDCP Co-Investors, such
amendment, modification or waiver shall be effective against any Minority
Investor adversely affected only with the written consent of such Minority
Investor or with the written consent of the holders of a majority of the
Ordinary Shares held by Minority Investors. In addition, any amendment,
modification or waiver of the provisions of
Section 2 which affects the Management Group (as defined in paragraph 4J) in an
adversely discriminatory manner relative to the Investors voting in favor of
such amendment, modification, or waiver shall be effective against the
Management Group only if such amendment, modification or waiver has been
approved by the holders of a majority of the Ordinary Shares held by the
Management Group. No other course of dealing between the Company and the holder
of any Ordinary Shares or any delay in exercising any rights hereunder or under
the Articles of Association shall operate as a waiver of any rights of any such
holders.
4C. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not. The
rights and obligations of any MDCP Co-Investor under this Agreement and the
agreements contemplated hereby may be assigned by such MDCP Co-Investor at any
time, in whole or in part, to any investment fund controlling, controlled by or
under common control with such MDCP Co-Investor, or any successor thereto or to
any co-investment vehicle for the benefit of all or some of the employees of
Madison Dearborn Partners, LLC or any successor thereto. Furthermore, without
the consent of any other party hereto, but subject to the limitation on the
number of directors set forth in paragraph 1H, each of MDCP IV Global
Investments LP and MDCP III Global Investments LP shall be entitled to assign
all or any portion of its rights to appoint directors pursuant to paragraph 1B,
paragraph 1G or paragraph 1H to any other Person to whom it is transferring or
has transferred equity securities of the Company. In the event that the MDCP
Co-Investor Majority determines that any amendment to this Agreement is
necessary or desirable to effectuate the assignment and the granting of rights
to a Person in accordance with the immediately foregoing sentence, each Investor
party hereto shall execute and deliver to the Company a counterpart of any
amendment that is consistent with the rights that may be assigned by MDCP IV
Global Investments LP or MDCP III Global Investments LP pursuant to the
immediately foregoing sentence; PROVIDED that in the event that any Investor
fails to deliver his or its counterpart to such amendment, such amendment shall
nonetheless be effective against such Investor notwithstanding any provision of
paragraph 4B that would suggest that the separate consent of such Investor was
necessary to effectuate such amendment. In the event that at any time after
November 1, 2002, (i) MWJS ceases to be the chairman of the Company or JSG, (ii)
GMcG ceases to be the chief executive officer of the Company or JSG, (iii) APJS
ceases to be the chief operating officer of the Company or JSG, or (iv) IJC
ceases to be the chief financial officer of the Company or JSG, the rights of
such person under Section 2 shall automatically, and without further action on
the part of any Person hereto, be assigned to such Person's successor with the
Company, who shall succeed to all of such Person's rights under Section 2
hereof. Prior to transferring any Ordinary Shares to any co-investor, each of
the MDCP Co-Investors shall, as a condition to such transfer, require such
co-investor to execute an agreement for the benefit of the Management Investors
pursuant to which such co-investor will vote its Ordinary Shares in favor of the
appointment of the Management Investors (and to the extent rights have arisen
pursuant to paragraph 1I, the Purchased Equity Director) to the Board to the
extent required by Section 1 of this Agreement. Notwithstanding anything else to
the contrary set forth herein, in no event shall MDCP IV Global Investments LP
be entitled to assign all or any portion of its rights pursuant to paragraph 1I
without the consent of the Company and each of the Management Investors.
4D. SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
4E. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
4F. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a Section of
this Agreement. The use of the word "including" in this Agreement shall be by
way of example rather than by limitation.
4G. GOVERNING LAW; FORUM. The Agreement and the exhibits and schedules
hereto shall be governed by and construed in accordance with the laws of
Ireland. Any suit or action brought against any Management Investor hereunder
should be brought exclusively in the courts of Ireland (it being understood
that, except as set forth in this sentence, nothing contained in this paragraph
4G shall limit any party's rights to bring any suit against any party (other
than the Management Investors) or with respect to the subject matter hereof in
any other jurisdiction).
4H. NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, one day after being sent to the recipient by reputable express
courier service by overnight mail (charges prepaid) or by facsimile. Such
notices, demands and other communications shall be sent to the Investors and to
the Company at the address indicated below:
IF TO THE COMPANY:
MDCP ACQUISITIONS PLC
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Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
WITH COPIES TO:
To the MDCP Co-Investors (at the address set forth below)
AND TO:
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE MDCP CO-INVESTORS:
c/o Madison Dearborn Partners, LLC
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPIES TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ANY MANAGEMENT INVESTOR:
c/o ▇▇▇▇▇▇▇ ▇▇▇ Solicitors
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Attention: ▇▇▇▇ ▇'▇▇▇▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
IF TO ANY OTHER INVESTOR:
To such Other Investor at the address set forth on the SCHEDULE
OF OTHER INVESTORS attached hereto
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
4I. EFFECTIVENESS. This Agreement shall become effective and binding upon
each party upon execution of this Agreement by each of the Company and such
party.
4J. RIGHTS OF MANAGEMENT GROUP. The Management Investors have entered into
this Agreement on their own behalf and, for the purposes of Section 2 of this
Agreement, on behalf of the participants in the Company's 2002 Management Equity
Plan (the "MANAGEMENT GROUP") but the Management Investors shall be entitled in
their absolute discretion to exercise (or omit to do so) all powers, authorities
and rights granted in Section 2 of this Agreement without recourse to or
consultation with the Management Group. No member of the Management Group shall
have any claim or right against the Management Investors on account of the
manner in which he has exercised or failed to exercise any of the said powers,
rights and authorities and each member of the Management Group waives any and
all rights which he may hereafter have or acquire as a result of the exercise or
manner of exercise or failure to exercise any of the said powers, rights and
authorities whether or not in so doing the Management Investors have acted
recklessly or negligently. In no event shall any member of the Management Group
(other than the Management Investors) have any right themselves to bring an
action or suit against the Company, any MDCP Co-Investor or any other Person for
breach of this Agreement.
4K. TERMINATION. Other than paragraph 1I (which shall terminate upon the
earlier of the date that the Minimum Investment Condition is no longer satisfied
and a Sale of the Company), the provisions of this Agreement shall terminate
automatically upon the earlier of (i) a Listing and (ii) a Sale of the Company.
* * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
MDCP ACQUISITIONS PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its:
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MDCP IV GLOBAL INVESTMENTS LP
By: MDP IV Global GP, LP
Its: General Partner
By: MDP Global Investors Limited
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its:
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MDCP III GLOBAL INVESTMENTS LP
By: MDP III Global GP, LP
Its: General Partner
By: MDP Global Investors Limited
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its:
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MDSE III GLOBAL INVESTMENTS LP
By: MDP III Global GP, LP
Its: General Partner
By: MDP Global Investors Limited
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its:
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/s/ DR. ▇▇▇▇▇▇▇ ▇.▇. SMURFIT
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Dr. ▇▇▇▇▇▇▇ ▇.▇. Smurfit
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇.▇. SMURFIT
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▇▇▇▇▇▇▇ ▇.▇. Smurfit
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
[SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT]
DBCP EUROPE GP (JERSEY) LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney in fact
SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS
(CAYMAN), L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
a general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS A, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS
(CAYMAN)II, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
a general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
By: JPMP MASTER FUND MANAGER, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
▇▇▇▇▇▇ STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ STREET FUND, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
▇▇▇▇▇ STREET FUND, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
PASSAGE PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
SPECIAL CO-INVEST I
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its:
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SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
▇▇▇▇▇▇▇▇ COMPANY, L.L.C.
By: /s/ [ILLEGIBLE]
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Its: Member-Manager
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SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
NORTHWESTERN UNIVERSITY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President & Chief Investment
Officer
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SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
▇▇▇▇▇▇▇▇ STREET PARTNERS V
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Partner
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SIGNATURE PAGE TO CORPORATE GOVERNANCE AGREEMENT
SCHEDULE OF OTHER INVESTORS
DBCP Europe GP (Jersey) Limited
▇▇ ▇▇▇ ▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇.▇. ▇▇▇▇▇▇ Partners Global Investors, L.P.
Equity Investments
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Partners Investors (Cayman), L.P.
Equity Investments
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Partners Global Investors A, L.P.
Equity Investments
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Partners Global Investors
(Cayman) II, L.P.
Equity Investments
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P.
Equity Investments
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Street Portfolio, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Street Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Street Portfolio, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Street Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Passage Portfolio, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Special Co-Invest I
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schwerin Company, L.L.C.
▇.▇. ▇▇▇ ▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Northwestern University
Investment ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Street Partners V
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
