UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 2, 2018
WestRock Company
(Exact name of registrant as specified in charter)
Delaware | 333-223964 | 37-1880617 |
(State or other jurisdiction of | (Commission | (IRS Employer |
incorporation) | File Number) | Identification No.) |
1000 Abernathy Road, Atlanta, GA | 30328 |
(Address of principal executive offices) | (Zip Code) |
(770) 448-2193
(Registrant’s telephone number, including area code)
Whiskey Holdco, Inc.
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
EXPLANATORY NOTE
On November 2, 2018, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 28, 2018, among WRKCo Inc. (formerly known as WestRock Company) (“WRKCo”), KapStone Paper and Packaging Corporation (“KapStone”), WestRock Company (formerly known as Whiskey Holdco, Inc.) (the “Company” or “WestRock”), Whiskey Merger Sub, Inc. and Kola Merger Sub, Inc., the Company acquired all of the outstanding shares of KapStone through a transaction in which: (i) Whiskey Merger Sub, Inc. merged with and into WRKCo, with WRKCo surviving such merger as a wholly owned subsidiary of the Company (the “WestRock Merger”) and (ii) Kola Merger Sub, Inc. merged with and into KapStone, with KapStone surviving such merger as a wholly owned subsidiary of the Company (the “KapStone Merger” and, together with the WestRock Merger, the “Mergers”). As a result of the Mergers, among other things, the Company became the ultimate parent of WRKCo, KapStone and their respective subsidiaries. Effective as of the effective time of the Mergers (the “Effective Time”), the Company changed its name to “WestRock Company” and WRKCo changed its name to “WRKCo Inc.”.
The Mergers and the Merger Agreement were previously described in the Registration Statement on Form S-4 (Registration No. 333-223964) filed by the Company (as amended, the “Registration Statement”) and the definitive proxy statement/prospectus of KapStone and the Company, dated August 1, 2018 (the “Proxy Statement/Prospectus”).
This Current Report on Form 8-K is being filed for the purpose of establishing the Company as the successor issuer to WRKCo and KapStone pursuant to Rule 12g-3(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to disclose certain events with respect to the Company in connection with the consummation of the Mergers.
Item 1.01. | Entry Into a Material Definitive Agreement. |
Credit Agreements
In connection with the Mergers, the Company and certain of its subsidiaries entered into (i) a joinder to the credit agreement, dated July 1, 2015 (the “2015 Credit Agreement”), with Wells Fargo Bank, National Association (“Wells Fargo”), as administrative agent and multicurrency agent, (ii) a joinder to the credit agreement, dated October 31, 2017 (the “2017 Credit Agreement”), with Wells Fargo, as administrative agent, (iii) a joinder to the credit agreement, dated July 1, 2015 (the “Farm Loan Credit Agreement”), with CoBank, ACB, as administrative agent, and (iv) a joinder to the credit agreement, dated April 27, 2018 (the “European Revolving Credit Agreement” and, together with the 2015 Credit Agreement, the 2017 Credit Agreement and the Farm Loan Credit Agreement, the “Specified Credit Agreements”), with Coöperatieve Rabobank U.A., New York Branch, as administrative agent (clauses (i) through (iv), collectively, the “Joinders”). The Joinders, among other things, add the Company as a party to, and a guarantor under, each of the Specified Credit Agreements.
The foregoing summary of the Joinders does not purport to be complete and is subject to and qualified in its entirety by reference to the Joinders, copies of which are filed as Exhibits 10.1 through 10.4 hereto and incorporated herein by reference.
As a result of the consummation of the Mergers and the execution of the Joinders, the previously disclosed amendments to the 2015 Credit Agreement, the 2017 Credit Agreement and the Farm Loan Credit Agreement became effective. Such amendments are described in, and attached as Exhibits 10.2, 10.3 and 10.4 to, WRKCo’s Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on March 9, 2018.
Supplemental Indentures
WestRock RKT, LLC, a Georgia limited liability company (“RKT”), is a party to (i) an indenture, dated as of February 22, 2012, by and among RKT, the guarantors party thereto and HSBC Bank USA, National Association, as trustee (as supplemented from time to time, the “HSBC RKT Indenture”), under which RKT has issued the 4.450% Senior Notes due 2019 and the 4.900% Senior Notes due 2022 and (ii) an indenture, dated as of September 11, 2012, by and among RKT, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented from time to time, the “BONYM RKT Indenture” and, together with the HSBC RKT Indenture, the “RKT Indentures”), under which RKT has issued the 3.500% Senior Notes due 2020 and the 4.000% Senior Notes due 2023.
WestRock MWV, LLC, a Delaware limited liability company (“MWV”), is a party to (i) an indenture, dated as of July 15, 1982, between MWV and Deutsche Bank Trust Company Americas (as successor to Bankers Trust Company), as trustee (as supplemented from time to time, the “1982 Indenture”), under which MWV has issued the 9.830% Notes due 2020; (ii) an indenture, dated as of March 1, 1983, between MWV and The Bank of New York Mellon (as successor to Irving Trust Company), as trustee (as supplemented from time to time, the “1983 Indenture”), under which MWV has issued the 9.750% Debentures due 2020, the 7.500% Sinking Fund Debentures due 2027, the 7.650% Sinking Fund Debentures due 2027, the 8.200% Debentures due 2030 and the 7.950% Debentures due 2031; (iii) an indenture, dated as of February 1, 1993, between MWV and The Bank of New York Mellon (as successor to The First National Bank of Chicago), as trustee (as supplemented from time to time, the “1993 Indenture”), under which MWV has issued the 6.840% Debentures due 2037 and the 7.550% Debentures due 2047; and (iv) and an indenture, dated as of April 2, 2002, between MWV and The Bank of New York Mellon (as successor to the Bank of New York), as trustee (as supplemented from time to time, the “2002 Indenture” and, together with the 1982 Indenture, the 1983 Indenture and the 1993 Indenture, the “MWV Indentures”), under which MWV has issued the 7.375% Notes due 2019 and the 6.800% Debentures due 2032.
WRKCo is a party to an indenture, dated as of August 24, 2017, by and among WRKCo, RKT, MWV and The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented from time to time, the “WRK Indenture”) under which WRKCo has issued the 3.000% Senior Notes due 2024, the 3.750% Senior Notes due 2025, the 3.375% Senior Notes due 2027 and the 4.000% Senior Notes due 2028.
In connection with the Mergers, the Company, WRKCo, RKT and MWV entered into supplemental indentures (a) to add the Company as a guarantor of the obligations of RKT under the RKT Indentures and all outstanding debt securities issued thereunder; (b) to add the Company as a guarantor of the obligations of MWV under the MWV Indentures and all outstanding debt securities issued thereunder and (c) to add the Company as a guarantor of the obligations of WRKCo under the WRK Indenture. On November 2, 2018, the Company, WRKCo, RKT, MWV and the appropriate trustees, entered into (i) Supplemental Indenture No. 4 to the HSBC RKT Indenture; (ii) Supplemental Indenture No. 4 to the BONYM RKT Indenture; (iii) the Eighth Supplemental Indenture to the 1982 Indenture; (iv) the Fourth Supplemental Indenture to the 1983 Indenture; (v) the Fifth Supplemental Indenture to the 1993 Indenture; (vi) the Second Supplemental Indenture to the 2002 Indenture and (vii) the Third Supplemental Indenture to the WRK Indenture ((i) through (vii) together, the “Supplemental Indentures”). The guarantees of the Company may be released upon the circumstances described in the Supplemental Indentures, including upon the merger with, consolidation into or transfer of substantially all of the assets of any guarantor to another obligor in respect of the applicable RKT Indenture, MWV Indenture or WRK Indenture.
The foregoing summary of the Supplemental Indentures does not purport to be complete and is subject to and qualified in its entirety by reference to the Supplemental Indentures, copies of which are filed as Exhibits 4.1 through 4.7 hereto and incorporated herein by reference.
Item 2.01. | Completion of Acquisition or Disposition of Assets. |
On November 2, 2018, pursuant to the Merger Agreement, the Mergers were consummated and became effective as of the Effective Time. As a result of the Mergers, among other things, the Company became the ultimate parent of WRKCo, KapStone and their respective subsidiaries. The Mergers and the Merger Agreement were previously described in the Registration Statement and the Proxy Statement/Prospectus.
Pursuant to the Merger Agreement, at the Effective Time (a) each issued and outstanding share of common stock, par value $0.01 per share, of WRKCo (“WRKCo common stock”) was converted into one share of common stock, par value $0.01 per share, of the Company (“Company common stock”) and (b) each issued and outstanding share of common stock, par value $0.0001 per share, of KapStone (“KapStone common stock”) (other than shares of KapStone common stock owned by (i) KapStone or any of its subsidiaries or (ii) any KapStone stockholder who properly exercised appraisal rights with respect to its shares of KapStone common stock in accordance with Section 262 of the Delaware General Corporation Law) was automatically canceled and converted into the right to receive (1) $35.00 in cash, without interest (the “Cash Consideration”), or, at the election of the holder of such share of KapStone common stock, (2) 0.4981 shares of Company common stock (the “Stock Consideration”) and cash in lieu of fractional shares, subject to proration procedures designed to ensure that the Stock Consideration would be received in respect of no more than 25% of the shares of KapStone common stock issued and outstanding immediately prior to the Effective Time (the “Maximum Stock Amount”). Each share of KapStone common stock in respect of which a valid election of Stock Consideration was not made by 5:00 p.m. New York City time on September 5, 2018 (the “Election Deadline”) was converted into the right to receive the Cash Consideration.
KapStone stockholders elected to receive Stock Consideration that was less than the Maximum Stock Amount and no proration was required. As a result, KapStone stockholders will receive in the aggregate approximately $3.3 billion in cash and 1,564,992 shares of WestRock common stock, which equals 0.6% of the issued and outstanding shares of WestRock common stock immediately following the Effective Time.
In addition, pursuant to the Merger Agreement, at the Effective Time, the Company assumed any outstanding awards granted under the equity-based incentive plans of WRKCo and KapStone (including the shares underlying such awards), the award agreements evidencing the grants of such awards and, in the case of the WRKCo equity-based incentive plans, the remaining shares available for issuance under the applicable plan, in each case subject to adjustments to such awards in the manner set forth in the Merger Agreement.
The shares of both WRKCo common stock and KapStone common stock will be suspended from trading on the New York Stock Exchange (the “NYSE”) prior to the open of trading on November 5, 2018. Shares of Company common stock will continue regular-way trading on the NYSE using WRKCo’s trading history under the ticker symbol “WRK” immediately following the suspension of trading of WRKCo common stock.
This Current Report on Form 8-K establishes the Company as the successor issuer to WRKCo and KapStone pursuant to Rule 12g-3(c) under the Exchange Act. Pursuant to 12g-3(d) under the Exchange Act, shares of Company common stock are deemed to be registered under Section 12(b) of the Exchange Act, and the Company is subject to the informational requirements of the Exchange Act, and the rules and regulations promulgated thereunder. The Company hereby reports this succession in accordance with Rule 12g-3(f) under the Exchange Act. The description of Company common stock set forth in the Proxy Statement/Prospectus is incorporated herein by reference.
The description of the Merger Agreement contained herein does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and incorporated herein by reference. This summary is not intended to modify or supplement any factual disclosures about the Company, WRKCo or KapStone, and should not be relied upon as disclosure about the Company, WRKCo or KapStone without consideration of the periodic and current reports and statements that the Company, WRKCo and KapStone file with the SEC. The terms of the Merger Agreement govern the contractual rights and relationships between, and allocate risks among, the parties thereto in relation to the transactions contemplated thereby. In particular, the representations and warranties made by the parties to each other in the Merger Agreement reflect negotiations between, and are solely for the benefit of, the parties thereto and may be limited or modified by a variety of factors, including: subsequent events, information included in public filings, disclosures made during negotiations among the parties, correspondence between the parties and disclosure schedules to the Merger Agreement. Accordingly, such representations and warranties may not describe the actual state of affairs at the date they were made or at any other time and should not be relied upon as statements of fact.
The information set forth in the “Explanatory Note” and Item 2.03 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
In connection with the Mergers, on November 2, 2018, the Company borrowed $3,800,000,000 under the credit agreement, dated as of March 7, 2018 (the “Delayed Draw Credit Agreement”), among the Company, WRKCo and certain subsidiaries of the Company from time to time party thereto, as guarantors, the lenders from time to time party thereto and Wells Fargo, as administrative agent. The borrowings under the Delayed Draw Credit Agreement consisted of a 364-day senior unsecured term loan in an aggregate principal amount of $300,000,000, a three-year senior unsecured term loan in an aggregate principal amount of $1,750,000,000 and a five-year senior unsecured term loan in an aggregate principal amount of $1,750,000,000, and were used by the Company to pay the Cash Consideration, to repay indebtedness under that certain Second Amended and Restated Credit Agreement, dated June 1, 2015, by and among KapStone, KapStone Kraft Paper Corporation, as borrower, the subsidiaries of KapStone Kraft Paper Corporation named therein, as guarantors, the lenders named therein and Bank of America, N.A., as administrative agent, swing line lender and a letter of credit issuer, to pay fees and expenses incurred in connection with the Mergers and to provide for working capital for the Company and its subsidiaries. The Delayed Draw Credit Agreement is described in, and attached as Exhibit 10.1 to, WRKCo’s Form 8-K filed with the SEC on March 9, 2018.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03 insofar as it relates to the creation of a direct financial obligation of the Company.
Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
Prior to the Mergers, shares of WRKCo common stock and KapStone common stock were each registered pursuant to Section 12(b) of the Exchange Act and listed on the NYSE. As a result of the Mergers, WRKCo has requested that the NYSE file a Form 25 to withdraw the shares of WRKCo common stock from listing on the NYSE, and KapStone has requested that the NYSE file a Form 25 to withdraw the shares of KapStone common stock from listing on the NYSE. The shares of both WRKCo common stock and KapStone common stock will be suspended from trading on the NYSE prior to the open of trading on November 5, 2018. WRKCo expects to file a Form 15 with the SEC to terminate the registration under the Exchange Act of the shares of WRKCo common stock, and suspend the reporting obligations under Sections 12(g) and 15(d) of the Exchange Act of WRKCo, and KapStone expects to file a Form 15 with the SEC to terminate the registration under the Exchange Act of the shares of KapStone common stock, and suspend the reporting obligations under Sections 12(g) and 15(d) of the Exchange Act of KapStone.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth in Items 1.01, 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01. | Changes in Control of Registrant. |
The information set forth in Items 2.01 and 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Board of Directors
In connection with the Mergers, prior to the Effective Time, the Company’s board of directors (the “Board”) approved an increase in the size of the Board from two to thirteen directors. Effective as of the Effective Time, Steven C. Voorhees and Ward H. Dickson, members of the Board since the Company’s incorporation, tendered their letters of resignation from the Board, and the directors of WRKCo at the Effective Time became the directors of the Company. The names of the directors of the Company are as follows: Colleen F. Arnold, Timothy J. Bernlohr, J. Powell Brown, Michael E. Campbell, Terrell K. Crews, Russell M. Currey, John A. Luke, Jr., Gracia C. Martore, James E. Nevels, Timothy H. Powers, Steven C. Voorhees, Bettina M. Whyte and Alan D. Wilson.
Committee Appointments
Effective as of the Effective Time, the Nominating and Corporate Governance Committee, the Compensation Committee, the Audit Committee, the Finance Committee and the Executive Committee of the Board are comprised of the same directors as those who comprised such committees of the board of directors of WRKCo at the Effective Time. The composition of each of the committees of the Board is indicated below:
Nominating and Governance Committee
Bettina M. Whyte (Chairman)
Timothy J. Bernlohr
Michael E. Campbell
James E. Nevels
Alan D. Wilson
Compensation Committee
Timothy J. Bernlohr (Chairman)
Michael E. Campbell
Gracia C. Martore
Timothy H. Powers
Bettina M. Whyte
Audit Committee
Gracia C. Martore (Chairman)
Colleen F. Arnold
J. Powell Brown
Terrell K. Crews
Russell M. Currey
Timothy H. Powers
Finance Committee
Alan D. Wilson (Chairman)
Colleen F. Arnold
J. Powell Brown
Terrell K. Crews
Russell M. Currey
James E. Nevels
Executive Committee
John A. Luke, Jr. (Chairman)
Timothy J. Bernlohr
Gracia C. Martore
Steven C. Voorhees
Bettina M. Whyte
Executive Officers
In connection with the Mergers, effective as of the Effective Time, all officers of the Company tendered their letters of resignation and the officers of WRKCo at the Effective Time became the officers of the Company. The names of these executive officers and their respective positions are indicated below:
Steven C. Voorhees | Chief Executive Officer and President |
Jeffrey W. Chalovich | President, Corrugated Packaging |
Ward H. Dickson | Executive Vice President and Chief Financial Officer |
Robert A. Feeser | President, Consumer Packaging |
Kelly C. Janzen | Chief Accounting Officer |
Vicki L. Lostetter | Chief Human Resources Officer |
Robert B. McIntosh | Executive Vice President, General Counsel and Secretary |
James B. Porter III | President, Business Development & Latin America |
Marc P. Shore | President, Multi Packaging Solutions |
Compensatory Plans
In connection with the Mergers, effective as of the Effective Time, the Company assumed the sponsorship of each of the following compensatory plans of WRKCo or KapStone, as applicable: (i) the WRKCo Employee Stock Purchase Plan; (ii) the WRKCo Amended and Restated 2016 Stock Incentive Plan; (iii) the MeadWestvaco Corporation 2005 Performance Incentive Plan, Amended and Restated Effective February 25, 2013; (iv) the RockTenn (SSCC) Equity Incentive Plan; (v) the Rock-Tenn Company Amended and Restated 2004 Incentive Stock Plan; (vi) the Multi Packaging Solutions International Limited 2015 Incentive Award Plan; (vii) the KapStone 2016 Incentive Plan; (viii) the KapStone 2014 Incentive Plan; and (ix) the KapStone 2006 Incentive Plan (amended and restated as of May 18, 2012). The Company also assumed any outstanding awards granted under the plans listed above (including the shares underlying such awards), the award agreements evidencing the grants of such awards and, in the case of the WRKCo plans listed above, the remaining shares available for issuance under the applicable plan, including any awards granted to the Company’s directors or executive officers, in each case subject to adjustments to such awards in the manner set forth in the Merger Agreement.
In addition, in connection with the Mergers, effective as of the Effective Time, the Company assumed the sponsorship of certain of the other employee compensation and benefit plans and agreements of WRKCo or KapStone, as applicable, including the following plans and agreements, as well as any rights and obligations of WRKCo or KapStone thereunder: (i) the WRKCo 401(k) Retirement Savings Plan; (ii) the MeadWestvaco Corporation Executive Retirement Plan, as amended and restated effective January 1, 2009; (iii) the Rock-Tenn Company Supplemental Executive Retirement Plan, as amended and restated through October 27, 2011; (iv) the MeadWestvaco Corporate Retirement Restoration Plan, effective January 1, 2015; (v) the WRKCo Deferred Compensation Plan; (vi) the WRKCo 2016 Deferred Compensation Plan for Non-Employee Directors; (vii) the MeadWestvaco Corporation Deferred Income Plan Restatement, effective January 1, 2007, as amended; (viii) the WRKCo Consolidated Pension Plan; (ix) the Letter Agreement between Robert A. Feeser and WRKCo, dated December 12, 2016; (x) the Employment Agreement between Marc Shore, Multi Packaging Solutions International Limited and WRKCo, dated January 23, 2017; (xi) the Rock-Tenn Company Annual Executive Bonus Program, as amended; (xii) the WRKCo Second Amended and Restated Annual Executive Bonus Plan; (xiii) the KapStone 401(k) Plan; and (xiv) the KapStone Defined Benefit Retirement Plan, as amended and restated effective January 1, 2015.
Additional information required by Items 5.02(c), (d) and (e) is included in (i) the Proxy Statement/Prospectus, (ii) WRKCo’s definitive annual proxy statement filed with the SEC on December 19, 2017 and (iii) WRKCo’s Current Reports on Form 8-K filed on each of November 29, 2017 and July 27, 2018 and is incorporated by reference into this Item 5.02.
Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On November 2, 2018, in connection with the Mergers, the Company amended and restated its Certificate of Incorporation and Bylaws to contain provisions identical to the certificate of incorporation and bylaws of WRKCo immediately prior to the Effective Time. At the Effective Time, the Company amended its Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws to change the Company’s name to “WestRock Company”. The Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as amended and currently in effect, are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K and are incorporated by reference into this Item 5.03.
Item 9.01. | Financial Statements and Exhibits. |
(a) Financial Statements of Business Acquired.
The financial statements required by Rule 3-05 of Regulation S-X were previously reported in, or incorporated by reference into, the Proxy Statement/Prospectus.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
WESTROCK COMPANY | ||||
By: | /s/ Robert B. McIntosh | |||
Name: | Robert B. McIntosh | |||
Title: | Executive Vice President, General Counsel and Secretary | |||
Date: November 5, 2018
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WESTROCK COMPANY
(as amended through November 2, 2018)
ARTICLE I
The name of the corporation (which is hereinafter referred to as the “Corporation”) is:
WestRock Company
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is The Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle, 19801. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized and incorporated under the General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of stock which the Corporation shall have authority to issue is 630,000,000, consisting of 30,000,000 shares of preferred stock, par value $.01 per share (hereinafter referred to as “Preferred Stock”), and 600,000,000 shares of common stock, par value $.01 per share (hereinafter referred to as “Common Stock”).
Shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred Stock in series and, by filing a certificate pursuant to the applicable law of the State of Delaware (hereinafter referred to as a “Preferred Stock Designation”), to establish from time to time the number of shares to be included in each such series and to fix the designation, powers, preferences and special rights of the shares of each such series and the qualifications, limitations and restrictions thereof, and increase and decrease the number of shares of any such series (but not below the number of shares thereof then outstanding).
The Common Stock shall be subject to the express terms of the Preferred Stock and any series thereof. Except as may be provided in the Certificate of Incorporation or in a Preferred Stock Designation, the holders of shares of Common Stock shall be entitled to one vote for each such share upon all questions presented to the stockholders, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, and holders of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which they are not entitled to vote.
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ARTICLE V
In furtherance of, and not in limitation of, the powers conferred by law, the Board of Directors is expressly authorized and empowered to adopt, amend or repeal the By-Laws of the Corporation; provided, however, that the By-Laws adopted by the Board of Directors under the powers hereby conferred may be amended or repealed by the Board of Directors or by the stockholders having voting power with respect thereto; provided, further, that, notwithstanding anything to the contrary in this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, this Certificate of Incorporation or any Preferred Stock Designation, Section 1.3, Section 2.1, Section 2.2, the last sentence of Section 2.3, Section 2.4, Section 2.7, Section 2.8, Section 2.9, Section 2.12, Section 3.1, Section 3.2, Section 3.3 or the last sentence of Section 7.7 of the By-Laws of the Corporation may be modified, amended or repealed, and any By-Law provision inconsistent with such provisions may be adopted, by the stockholders of the Corporation only by the affirmative vote of the holders of at least 75 percent of the voting power of the then outstanding Voting Stock (as defined in the next sentence), voting together as a single class.
For the purposes of this Certificate of Incorporation, “Voting Stock” shall mean the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors.
ARTICLE VI
Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing in lieu of a meeting of such stockholders.
ARTICLE VII
Subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, the number of directors constituting the total number of directors which the Corporation would have if there were no vacancies (the “Whole Board”) shall be fixed from time to time exclusively pursuant to a resolution adopted by a majority of the Whole Board.
Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
At each annual meeting of the stockholders of the Corporation (1) directors shall be elected as provided in the By-Laws of the Corporation to hold office for a term expiring at the next succeeding annual meeting of stockholders after their election, with each director to hold office until his or her successor shall have been duly elected and qualified, and (2) only if authorized by a resolution of the Board of Directors, directors may be elected to fill any vacancy on the Board of Directors, regardless of how such vacancy shall have been created.
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Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, and unless the Board of Directors otherwise determines, any vacancy resulting from death, resignation, retirement, disqualification, removal from office or other cause, and any newly created directorships resulting from any increase in the authorized number of directors, may be filled only by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors, and any director so chosen shall hold office for the remainder of the term that was being served by the director whose absence creates the vacancy, or, in the case of a vacancy created by an increase in the number of directors, a term expiring at the next annual meeting of stockholders, and in each case until such director’s successor shall have been duly elected and qualified. No decrease in the number of authorized directors constituting the total number of directors which the Corporation would have if there were no vacancies shall shorten the term of any incumbent director.
Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the By-Laws.
Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, any director, or the entire Board of Directors, may be removed from office at any time, by the affirmative vote of the holders of a majority of the voting power of the then outstanding Voting Stock, voting together as a single class.
ARTICLE VIII
A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. Any amendment or repeal of this Article VIII shall not adversely affect any right or protection of a director of the Corporation existing hereunder in respect of any act or omission occurring prior to such amendment or repeal.
ARTICLE IX
Except as may be expressly provided in this Certificate of Incorporation, the Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation or a Preferred Stock Designation, and any other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed herein or by applicable law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article IX; provided, however, that any amendment or repeal of Article VIII of this Certificate of Incorporation shall not adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such amendment or repeal; and provided, further, that no Preferred Stock Designation shall be amended after the issuance of any shares of the series of Preferred Stock created thereby, except in accordance with the terms of such Preferred Stock Designation and the requirements of applicable law.
3
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
WESTROCK COMPANY
INCORPORATED UNDER THE LAWS OF DELAWARE
As Amended by the Board of Directors through November 2, 2018
TABLE OF CONTENTS
Page
ARTICLE I MEETINGS OF STOCKHOLDERS | 1-1 |
Section 1.1. Place of Meetings | 1-1 |
Section 1.2. Annual Meetings | 1-1 |
Section 1.3. Special Meetings | 1-1 |
Section 1.4. Notice of Meetings | 1-1 |
Section 1.5. Postponement | 1-1 |
Section 1.6. Quorum | 1-2 |
Section 1.7. Chairman; Secretary | 1-2 |
Section 1.8. Inspectors of Election; Opening and Closing the Polls | 1-2 |
Section 1.9. Voting | 1-2 |
Section 1.10. Meeting Required | 1-3 |
Section 1.11. Notification of Proposals | 1-3 |
ARTICLE II BOARD OF DIRECTORS | 2-1 |
Section 2.1. General Powers, Number, Qualifications and Term of Office | 2-1 |
Section 2.2. Age Limitation | 2-1 |
Section 2.3. Election of Directors; Vacancies; New Directorships | 2-1 |
Section 2.4. Removal of Directors | 2-1 |
Section 2.5. Notification of Nomination | 2-2 |
Section 2.6. Place of Meetings | 2-3 |
Section 2.7. Regular Meetings | 2-4 |
Section 2.8. Special Meetings | 2-4 |
Section 2.9. Notice of Special Meetings | 2-4 |
Section 2.10. Quorum and Manner of Acting | 2-4 |
Section 2.11. Chairman; Secretary | 2-5 |
Section 2.12. Compensation | 2-5 |
Section 2.13. Indemnification and Insurance | 2-5 |
Section 2.14. The Non-Executive Chairman of the Board | 2-8 |
Section 2.15. Lead Independent Director | 2-8 |
ARTICLE III COMMITTEES | 3-1 |
Section 3.1. Committees of Directors | 3-1 |
Section 3.2. Removal; Vacancies | 3-1 |
i |
Section 3.3. Compensation | 3-1 |
ARTICLE IV OFFICERS | 4-1 |
Section 4.1. Number | 4-1 |
Section 4.2. Election; Term of Office and Qualifications | 4-1 |
Section 4.3. Removal | 4-1 |
Section 4.4. Salaries | 4-1 |
Section 4.5. The President | 4-1 |
Section 4.6. The Vice Presidents | 4-2 |
Section 4.7. The Assistant Vice Presidents | 4-2 |
Section 4.8. The Secretary | 4-2 |
Section 4.9. The Assistant Secretaries | 4-2 |
Section 4.10. The Treasurer | 4-2 |
Section 4.11. The Assistant Treasurers | 4-3 |
Section 4.12. The Controller | 4-3 |
Section 4.13. The Assistant Controllers | 4-3 |
ARTICLE V AUTHORITY TO ACT AND SIGN FOR THE CORPORATION | 5-1 |
Section 5.1. Contracts, Agreements, Checks and Other Instruments | 5-1 |
Section 5.2. Bank Accounts; Deposits; Checks, Drafts and Orders Issued in the Corporation’s Name | 5-1 |
Section 5.3. Delegation of Authority | 5-1 |
Section 5.4. Stock Certificates | 5-2 |
Section 5.5. Voting of Stock in Other Corporations | 5-2 |
Section 5.6. Sale and Transfer of Securities | 5-2 |
ARTICLE VI STOCK | 6-1 |
Section 6.1. Certificates of Stock | 6-1 |
Section 6.2. Transfer of Stock | 6-1 |
Section 6.3. Transfer Agents and Registrars | 6-1 |
Section 6.4. Record Dates | 6-1 |
Section 6.5. Electronic Securities Recordation | 6-1 |
ARTICLE VII SUNDRY PROVISIONS | 7-1 |
Section 7.1. Offices | 7-1 |
Section 7.2. Seal | 7-1 |
Section 7.3. Books and Records | 7-1 |
Section 7.4. Fiscal Year | 7-1 |
Section 7.5. Independent Public Accountants | 7-1 |
ii |
Section 7.6. Waiver of Notice | 7-1 |
Section 7.7. Amendments | 7-1 |
Section 7.8. Exclusive Forum | 7-2 |
iii |
ARTICLE
I
MEETINGS OF STOCKHOLDERS
Section 1.1. Place of Meetings. The annual meeting of stockholders for the election of directors and all special meetings for that or for any other purpose shall be held at such time and place, either within or without the State of Delaware as may from time to time be designated by the Board of Directors.
Section 1.2. Annual Meetings. The annual meeting of stockholders for elections of directors, and for the transaction of such other business as may be required or authorized to be transacted by stockholders, shall be held on such date and time as designated from time to time by the Board of Directors.
Section 1.3. Special Meetings. A special meeting of stockholders for any purpose may be called at any time only by a majority of the Board of Directors, by the Non-Executive Chairman of the Board, by the Chief Executive Officer or by the holders of at least 50 percent of the voting power of the then outstanding common stock, par value $0.01 per share, of the Corporation. Stockholders may call a special meeting of stockholders in accordance with the foregoing by delivering to the Secretary notice of such request (which notice shall include the purpose for which such special meeting is being called) signed by the holders of the required percentage of shares. If the stockholders call a special meeting of stockholders in accordance with the foregoing, the Board of Directors shall have the exclusive right and power to do the following with respect to such special meetings: (a) fix the record date for the determination of whether the holders of the required percentage of shares has called a special meeting, (b) fix the date and time of such special meeting which date shall be no more than 180 days after the date on which the Secretary received notice of the request for a special meeting and (c) fix the record date for determining the stockholders entitled to vote at the special meeting, in accordance with Section 6.4 of these Bylaws. At any such special meeting the only business transacted shall be in accordance with the purposes specified in the notice calling such meeting.
Section 1.4. Notice of Meetings. Except as may otherwise be provided by statute or the Certificate of Incorporation, the Secretary or an Assistant Secretary shall cause written notice of the place, date and hour for holding each annual and special meeting of stockholders to be given not less than ten days nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting by mailing the notice, postage prepaid, to the stockholder at his post office address as it appears on the records of the Corporation. Notice of each special meeting shall contain a statement of the purpose or purposes for which the meeting is called. Except as otherwise provided by statute, no notice of an adjourned meeting need be given other than by announcement at the meeting which is being adjourned of the time and place of the adjourned meeting.
Section 1.5. Postponement. Any previously scheduled annual or special meeting of stockholders may be postponed by resolution of the Board of Directors, upon public notice given prior to the date scheduled for such meeting.
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Section 1.6. Quorum. The holders of shares of the outstanding stock of the Corporation representing a majority of the total votes entitled to be cast at any meeting of stockholders, if present in person or by proxy, shall constitute a quorum for the transaction of business unless a larger proportion shall be required by statute or the Certificate of Incorporation. The Chairman of a meeting of stockholders may adjourn such meeting from time to time, whether or not there is a quorum of stockholders at such meeting. In the absence of a quorum at any stockholders’ meeting, the stockholders present in person or by proxy and entitled to vote may, by majority vote, adjourn the meeting from time to time until a quorum shall attend. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. The lack of the required quorum at any meeting of stockholders for action upon any particular matter shall not prevent action at such meeting upon other matters which may properly come before the meeting, if the quorum required for taking action upon such other matters shall be present.
Section 1.7. Chairman; Secretary. The Non-Executive Chairman of the Board shall call meetings of the stockholders to order and shall act as Chairman. If there is no Non-Executive Chairman of the Board, or in the event of his absence or disability, the president of the Corporation (the “President”), or in the event of his absence or disability, one of the Executive Vice Presidents (in order of first designation as an Executive Vice President) present, or in the absence of all Executive Vice Presidents, one of the Senior Vice Presidents (in order of first designation as a Senior Vice President) present, or in the absence also of all Senior Vice Presidents, one of the Vice Presidents (in order of first designation as a Vice President) present, shall call meetings of the stockholders to order and shall act as Chairman thereof. The Secretary of the Corporation, or any person appointed by the Chairman of the meeting, shall act as Secretary of the meeting of stockholders.
Section 1.8. Inspectors of Election; Opening and Closing the Polls. The Board of Directors in advance of any meeting of stockholders shall appoint two or more inspectors of election to act at such meeting or any adjournment thereof. In the event of the failure of the Board of Directors to make such appointments, or if any inspector shall for any reason fail to attend or to act at any meeting, or shall for any reason cease to be an inspector before completion of his duties, the appointments shall be made by the Chairman of the meeting.
The Chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting.
Section 1.9. Voting. At each meeting of the stockholders, each stockholder entitled to vote thereat shall, except as otherwise provided in the Certificate of Incorporation, be entitled to one vote in person or by proxy for each share of the stock of the Corporation registered in his name on the books of the Corporation on the date fixed pursuant to Section 6.4 of these Bylaws as the record date fixed for such meeting.
At each meeting of the stockholders at which a quorum is present, all matters (except as otherwise provided in Section 2.3, Section 2.4 or Section 7.7 of these Bylaws, in the Certificate of Incorporation, or by statute) shall be decided by the affirmative vote of the majority of the shares present in person or represented by proxy at such meeting and entitled to vote on the subject matter.
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The Board of Directors, in its discretion, or the officer of the Corporation presiding at the meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be by written ballot.
Section 1.10. Meeting Required. Any action by stockholders of the Corporation shall be taken at a meeting of stockholders and no corporate action may be taken by written consent of stockholders entitled to vote upon such action.
Section 1.11. Notification of Proposals. The proposal of business, other than nominations, which are governed by Section 2.5 of these Bylaws, to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation’s notice of meeting, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this Bylaw, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 1.11.
For business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of the first paragraph of this Section 1.11, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and such other business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting, provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the seventh day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth (a) as to the business that the stockholder proposes to bring before the meeting, (i) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and (ii) a description of all agreements, arrangements and understandings between such stockholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder; and (b) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner and (ii) (A) the class and number of shares of the Corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner, (B) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class of shares of the Corporation or with a value derived in whole or in part from the value of any class of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class of capital stock of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder has a right to vote any shares of any security of the Corporation, (D) any short interest in a security of the Corporation (for purposes of this Bylaw a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (E) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such stockholder’s immediate family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose such ownership as of the record date), and (iii) any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations promulgated thereunder.
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Only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.11. Except as otherwise provided by law, the Chairman of the meeting shall have the power and duty to determine whether any business proposed to be brought before the meeting was proposed in accordance with the procedures set forth in this Section 1.11 and, if any proposed business is not in compliance with this Section 1.11, to declare that such defective proposal shall be disregarded.
For purposes of this Section 1.11, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 1.11, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 1.11. Nothing in this Section 1.11 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
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ARTICLE
II
BOARD OF DIRECTORS
Section 2.1. General Powers, Number, Qualifications and Term of Office. The business and property of the Corporation shall be managed and controlled by the Board of Directors. The Board of Directors shall consist of a number of directors to be determined from time to time only by resolution adopted by the Board of Directors.
At each annual meeting of the stockholders of the Corporation, directors elected to succeed those directors whose terms then expire shall hold office for a term expiring at the next succeeding annual meeting of stockholders after their election. Each director of the Corporation shall hold office as provided above and until his or her successor shall have been elected and qualified.
Section 2.2. Age Limitation. No person shall serve as a director of the Corporation following the annual meeting of stockholders after attaining age 72; provided, that on an exceptional basis, the Board of Directors may extend a director’s term for a limited period.
Section 2.3. Election of Directors; Vacancies; New Directorships. Subject to Section 2.1 of this Article, directors shall be elected annually in the manner provided in these Bylaws. At each annual or special meeting of the stockholders for the election of directors, at which a quorum is present, each director shall be elected by the vote of the majority of the votes cast, provided that if as of a date that is fourteen (14) days in advance of the date the Corporation files its definitive proxy statement (regardless of whether or not thereafter revised or supplemented) with the Securities and Exchange Commission the number of nominees exceeds the number of directors to be elected, the directors shall be elected by the vote of a plurality of the shares represented in person or by proxy at any such meeting and entitled to vote on the election of directors. For purposes of this Section 2.3, a majority of the votes cast means that the number of shares voted “for” a director must exceed the number of votes cast “against” that director. The Nominating and Governance Committee has established procedures under which any director who is not elected shall offer to tender his or her resignation to the Non-Executive Chairman of the Board and the Nominating and Governance Committee. Any vacancies on the Board of Directors caused by death, removal, resignation or any other cause and any newly created directorships resulting from any increase in the authorized number of directors, may be filled only by a majority of the directors then in office, even though less than a quorum, at any regular or special meeting of the Board of Directors, and any director so elected shall hold office for the remainder of the term that was being served by the director whose absence creates the vacancy, or, in the case of a vacancy created by an increase in the number of directors, a term expiring at the next annual meeting of stockholders, and in each case until such director’s successor shall have been duly elected and qualified.
Section 2.4. Removal of Directors. Any director may be removed without cause, at any time, by the affirmative vote of the holders of at least a majority of the combined voting power of the then-outstanding shares of all classes and series of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, at a special meeting of stockholders duly called and held for the purpose or at an annual meeting of stockholders. Notwithstanding anything to the contrary in this Article II, until the third anniversary of the Effective Time (as used herein, such term shall have the meaning given in the Second Amended and Restated Business Combination Agreement, dated as of April 17, 2015 and amended as of May 5, 2015), the affirmative vote of at least three-fourths of the whole Board of Directors shall be required for (i) the removal of Mr. John A. Luke, Jr., any determination not to, or failure to, appoint or re-elect Mr. John A. Luke, Jr., as Non-Executive Chairman of the Board or any determination not to, or failure to, nominate Mr. John A. Luke, Jr. as a director, and (ii) any determination not to, or failure to, nominate Mr. Steven C. Voorhees as a director.
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Section 2.5. Notification of Nomination. Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Any stockholder entitled to vote for the election of directors at a meeting may nominate persons for election as directors only if written notice of such stockholder’s intent to make such nomination is given, either by personal delivery or by the United States mail, postage prepaid, to the Secretary at the principal executive offices of the Corporation, not later than (I) with respect to an election to be held at an annual meeting of stockholders, the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting, provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the seventh day following the day on which public announcement of the date of such meeting is first made by the Corporation, and (II) with respect to an election to be held at a special meeting of stockholders for the election of directors, the close of business on the seventh day following the date on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above. Each such notice shall set forth: (a) the name and address of the stockholder who intends to make the nomination and of the person or persons to be nominated, (b) (i) the class and number of shares of the Corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner, (ii) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class of shares of the Corporation or with a value derived in whole or in part from the value of any class of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class of capital stock of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation, (iii) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder has a right to vote any shares of any security of the Corporation, (iv) any short interest in a security of the Corporation (for purposes of this Bylaw a person shall be deemed to have a short interest in a security if such person, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (v) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder that are separated or separable from the underlying shares of the Corporation, (vi) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (vii) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such stockholder’s immediate family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose such ownership as of the record date), and (iii) any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (c) a representation that such stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice, (d) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such stockholder and beneficial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert were the “registrant” for purposes of such Item and the nominee were a director or executive officer of such registrant, (e) such other information regarding each nominee proposed by such stockholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had each nominee been nominated, or intended to be nominated by the Board of Directors, and (f) the consent of each nominee to serve as a director of the Corporation if so elected. The Chairman of the meeting may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedures. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
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Section 2.6. Place of Meetings. The Board of Directors may hold its meetings at such place or places, within or without the State of Delaware, as it may from time to time determine. In the absence of any such determination, such meetings shall be held at the principal business office of the Corporation. Any meeting may be held upon direction to the Secretary by the Non-Executive Chairman of the Board, or, in his absence, by the President at any place, provided that notice of the place of such meeting, whether regular or special, shall be given in the manner provided in Section 2.9 of this Article unless such notice is not required by reason of Section 2.7 of these Bylaws.
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Section 2.7. Regular Meetings. Regular meetings of the Board of Directors shall be held in each year on such dates as a resolution of the Board of Directors may designate at the beginning of each year. Any regular meeting of the Board may be dispensed with upon order of the Board of Directors, or by the Non-Executive Chairman of the Board, or, in his absence, the President if notice thereof is given to each director at least one day prior to the date scheduled for the meeting. If any day fixed for a regular meeting shall be a legal holiday, then such meeting shall be held on the next succeeding business day not a legal holiday. No notice shall be required for any regular meeting of the Board, except that notice of the place of such meeting shall be given (as provided in Section 2.9) if such meeting is to be held at a place other than the principal business office of the Corporation or if the meeting is held on a date other than that established at the beginning of each year by a resolution of the Board of Directors.
Section 2.8. Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the direction of the Non-Executive Chairman of the Board, the Chief Executive Officer, an Executive Vice President, or a majority of the Board of Directors then in office.
Section 2.9. Notice of Special Meetings. Notice of the place, day and hour of every special meeting of the Board of Directors and, if required by Section 2.7 of these Bylaws, of a regular meeting of the Board of Directors shall be given by the Secretary or an Assistant Secretary to each director at least twelve hours before the meeting, by telephone, telegraph or cable, telecopier or e-mail, or by delivery to him personally or to his residence or usual place of business, or by mailing such notice at least three days before the meeting, postage prepaid, to him at his last known post office address according to the records of the Corporation. Except as provided by statute, or by Section 4.3 or Section 7.7 of these Bylaws, such notice need not state the business to be transacted at any special meeting. No notice of any adjourned meeting of the Board of Directors need be given. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 7.6 of these Bylaws.
Section 2.10. Quorum and Manner of Acting. A whole number of directors equal to at least a majority of the total number of directors as determined by resolution in accordance with Section 2.1, regardless of any vacancies, shall constitute a quorum for the transaction of business at any meeting except to fill vacancies in accordance with Section 2.1 and Section 2.3 of this Article, and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors unless otherwise provided by statute or these Bylaws. In the absence of a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice until a quorum be had. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally scheduled. The directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum.
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Section 2.11. Chairman; Secretary. At each meeting of the Board of Directors, the Non-Executive Chairman of the Board shall act as Chairman. If there is no Non-Executive Chairman of the Board, or in the event of his absence or disability, the Lead Independent Director or in his absence or disability, the President or in his absence or disability, one of the Executive Vice Presidents who is also a director, or in their absence, a director chosen by a majority of the directors present, shall act as Chairman. The Secretary, or in his absence or disability, an Assistant Secretary, or any person appointed by the Chairman of the meeting, shall act as Secretary of the meeting.
Section 2.12. Compensation. Each director except a director who is an active employee of the Corporation in receipt of a salary shall be paid such sums as director’s fees as shall be fixed by the Board of Directors. Each director may be reimbursed for all expenses incurred in attending meetings of the Board of Directors and in transacting any business on behalf of the Corporation as a director. Nothing in this Section 2.12 shall be construed to preclude a director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 2.13. Indemnification and Insurance. (A) Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was, at any time during which these Bylaws are in effect (whether or not such person continues to serve in such capacity at the time any indemnification or payment of expenses pursuant hereto is sought or at the time any proceeding relating thereto exists or is brought), a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation (hereinafter, an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, trustee, employee or agent or in any other capacity while serving as a director, officer, trustee, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in paragraph (C) of this Bylaw, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Bylaw shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within twenty (20) days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter, the “undertaking”) by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal (a “final disposition”) that such director or officer is not entitled to be indemnified for such expenses under this Bylaw or otherwise. The rights conferred upon indemnitees in this Bylaw shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.
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(B) To obtain indemnification under this Bylaw, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first sentence of this paragraph (B), a determination, if required by applicable law, with respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (2) if no request is made by the claimant for a determination by Independent Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation. In the event the determination of entitlement to indemnification is to be made by Independent Counsel at the request of the claimant, the Independent Counsel shall be selected by the Board of Directors unless there shall have occurred within two years prior to the date of the commencement of the action, suit or proceeding for which indemnification is claimed a “Change of Control” as defined in the Corporation’s current equity compensation plan, in which case the Independent Counsel shall be selected by the claimant unless the claimant shall request that such selection be made by the Board of Directors. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within 10 days after such determination.
(C) If a claim under paragraph (A) of this Bylaw is not paid in full by the Corporation within sixty (60) days after a written claim pursuant to paragraph (B) of this Bylaw has been received by the Corporation (except in the case of a claim for advancement of expenses, for which the applicable period is twenty (20) days), the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the General Corporation Law of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Corporation (including its Board of Directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
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(D) If a determination shall have been made pursuant to paragraph (B) of this Bylaw that the claimant is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to paragraph (C) of this Bylaw.
(E) The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to paragraph (C) of this Bylaw that the procedures and presumptions of this Bylaw are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this Bylaw.
(F) The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Bylaw shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise. Any amendment, modification, alteration or repeal of this Bylaw that in any way diminishes or adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission that took place prior to such amendment or repeal.
(G) The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. To the extent that the Corporation maintains any policy or policies providing such insurance, each such director or officer, and each such agent or employee to which rights to indemnification have been granted as provided in paragraph (H) of this Bylaw, shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent of the Corporation to the fullest extent of the provisions of this Bylaw with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
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(I) If any provision or provisions of this Bylaw shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Bylaw (including, without limitation, each portion of any paragraph of this Bylaw containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Bylaw (including, without limitation, each such portion of any paragraph of this Bylaw containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
(J) For purposes of this Bylaw:
(1) “Disinterested Director” means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant.
(2) “Independent Counsel” means a law firm, a member of a law firm, or an independent practitioner that is experienced in matters of corporation law and shall include any person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine the claimant’s rights under this Bylaw.
(K) Any notice, request or other communication required or permitted to be given to the Corporation under this Bylaw shall be in writing and either delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Corporation and shall be effective only upon receipt by the Secretary.
Section 2.14. The Non-Executive Chairman of the Board. The Non-Executive Chairman of the Board shall be chosen from the Board of Directors. The Non-Executive Chairman of the Board shall preside at all meetings of the stockholders in accordance with Section 1.7 of these Bylaws and preside at all meetings of the Board of Directors. In addition, if the Non-Executive Chairman of the Board is an independent director, the Non-Executive Chairman of the Board shall preside at and schedule all executive sessions of the independent directors. The Non-Executive Chairman of the Board shall provide oversight, direction and leadership to the Board of Directors and facilitate communication among directors and the regular flow of information between management and directors. He shall serve as chairman of the Executive Committee and provide input to the Compensation Committee and Nominating and Governance Committee, as appropriate, with respect to the performance evaluation process of the Chief Executive Officer, annual board performance self-evaluation process and management and Board of Directors succession planning. In addition, he shall exercise such other powers and perform such other duties as may be assigned to him by the Board of Directors. Notwithstanding anything to the contrary in these Bylaws but subject to Section 2.4 of these Bylaws, until the third anniversary of the Effective Time, the Non-Executive Chairman of the Board shall be Mr. John A. Luke, Jr., unless Mr. John A. Luke, Jr. is not willing or able to serve as Non-Executive Chairman of the Board.
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Section 2.15. Lead Independent Director. The Lead Independent Director shall be selected by the Board from among the independent directors to serve a one-year term, provided that no director may serve more than two consecutive terms as Lead Independent Director, unless the Board determines otherwise. The Lead Independent Director shall preside at all meetings of the Board of Directors at which the Non-Executive Chairman of the Board is not present, including executive sessions of the independent directors, have the authority to call meetings of the independent directors, serve as liaison between the Non-Executive Chairman of the Board and the independent directors, and, if requested by a major shareholder, ensure that he or she is available for consultation and direct communication.
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ARTICLE
III
COMMITTEES
Section 3.1. Committees of Directors. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Such resolution shall specify a designation by which a committee shall be known, shall fix its powers and authority, and may fix the term of office of its members. Any such committee, to the extent provided in the resolution of the Board of Directors, or in these Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; except as otherwise provided by statute. The Board of Directors shall establish the following Committees: the Nominating and Governance Committee; the Compensation Committee; the Audit Committee; the Finance Committee; and the Executive Committee.
Section 3.2. Removal; Vacancies. The members of committees of directors shall serve at the pleasure of the Board of Directors. Subject to Section 3.1, any member of a committee of directors may be removed at any time and any vacancy in any such committee may be filled by majority vote of the whole Board of Directors.
Section 3.3. Compensation. The Board of Directors may by resolution determine from time to time the compensation, if any, including reimbursement for expenses, of members of any committee of directors for services rendered to the Corporation as a member of any such committee.
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ARTICLE
IV
OFFICERS
Section 4.1. Number. The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary and a Treasurer. Officers of the Corporation may also include a Controller, Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers, and Assistant Controllers. One or more persons may hold any two of such offices. The Chief Executive Officer of the Corporation will also serve as the President of the Corporation. Notwithstanding anything to the contrary in these Bylaws but subject to Section 4.3, effective as of the Effective Time and until the third anniversary of thereof, the Chief Executive Officer and President shall be Mr. Steven C. Voorhees (unless Mr. Steven C. Voorhees is not willing or able to serve as Chief Executive Officer and President). Subject to the direction of the Board of Directors, the Chief Executive Officer shall have general supervision of the business and affairs of the Corporation and over its officers, employees and agents with such powers and duties incident to being Chief Executive Officer of a corporation, and as are provided for him in these Bylaws. In addition, the Chief Executive Officer shall exercise such other powers and perform such other duties as may be assigned to him by the Board of Directors. The Board of Directors may add additional titles to any office to indicate seniority or additional responsibility.
Section 4.2. Election; Term of Office and Qualifications. The officers shall be chosen annually by the Board of Directors at its first regular meeting following the annual meeting of stockholders and each shall hold office until the corresponding meeting in the next year and until his successor shall have been elected and shall qualify, or until his earlier death or resignation or until he shall have been removed in the manner provided in Section 4.3. Any vacancy in any office shall be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.
Section 4.3. Removal. Subject to the next sentence, any officer may be removed from office, either with or without cause, by the majority of the whole Board of Directors at a special meeting called for that purpose, or at a regular meeting. Notwithstanding anything to the contrary in this Article IV, until the third anniversary of the Effective Time, the affirmative vote of at least three-fourths of the whole Board of Directors shall be required for the removal or termination of Mr. Steven C. Voorhees, any determination not to, or failure to, appoint Mr. Steven C. Voorhees, as Chief Executive Officer and President.
Section 4.4. Salaries. The Board of Directors shall have authority to determine any and all salaries of employees of the Corporation. The Board may by resolution authorize a committee of directors (none of whom shall be an officer or employee of the Corporation) to fix any such salaries. Salaries not determined by the Board of Directors, or by a committee of directors, may be fixed by the Chief Executive Officer.
Section 4.5. The President. The President shall have all powers and perform all duties incident to the office of the President as are provided for him in these Bylaws and shall exercise such other powers and perform such other duties (in addition to his duties as Chief Executive Officer) as may be assigned to him by the Board of Directors.
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Section 4.6. The Vice Presidents. The Vice Presidents shall have such powers and perform such duties as are provided for them in these Bylaws and as may be assigned to them, or any of them, by the Board of Directors or the President. The Executive Vice Presidents (in order of first designation as an Executive Vice President), in the event of the death or disability of the President, shall perform all the duties of the President and when so acting shall have the powers of the President. In the event of the death or disability of the President and all Executive Vice Presidents, the available Senior Vice President (in order of first designation as a Senior Vice President), or in the event of the death or disability also of all Senior Vice Presidents, the Vice President who is available and was first elected a Vice President prior to all other available Vice Presidents shall perform all the duties of the President and when so acting shall have the powers of the President. A Vice President performing the duties and exercising the powers of the President shall perform the duties and exercise the powers of the Chief Executive Officer.
Section 4.7. The Assistant Vice Presidents. The Assistant Vice Presidents shall have such powers and perform such duties as may be assigned to them, or any of them, by the Board of Directors or the Chief Executive Officer.
Section 4.8. The Secretary. The Secretary shall keep, or cause to be kept in books provided for the purpose, the minutes of the meeting of stockholders and of the Board of Directors and any minutes of Committees of the Board of Directors; shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by statute; shall be custodian of the records and of the corporate seal or seals of the Corporation; and shall cause the corporate seal to be affixed to any document the execution of which, on behalf of the Corporation, under its seal, is duly authorized and when so affixed, may attest the same. The Secretary shall have all powers and perform all duties incident to the office of a secretary of a corporation and as are provided for in these Bylaws and shall exercise such other powers and perform such other duties as may be assigned by the Board of Directors, or, as to matters not related to the Board of Directors, the Chief Executive Officer or, as to matters related to the Board of Directors, the Non-Executive Chairman of the Board.
Section 4.9. The Assistant Secretaries. In the absence or disability of the Secretary, the Assistant Secretary designated by the Secretary shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary. The Assistant Secretaries shall exercise such powers and perform such duties as are provided for them in these Bylaws and as may be assigned to them, or any of them, by the Board of Directors, the Chief Executive Officer or the Secretary.
Section 4.10. The Treasurer. The Treasurer shall have general charge of and general responsibility for all funds, securities, and receipts of the Corporation and shall deposit, or cause to be deposited, in the name of the Corporation, all moneys or other valuable effects in such banks, trust companies or other depositories as shall from time to time be designated in accordance with Section 5.2 of these Bylaws. He shall have all powers and perform all duties incident to the office of a treasurer of a corporation and as are provided for him in these Bylaws and shall exercise such other powers and perform such other duties as may be assigned to him by the Board of Directors or the Chief Executive Officer.
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Section 4.11. The Assistant Treasurers. In the absence or disability of the Treasurer, the Assistant Treasurer designated by the Treasurer shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. The Assistant Treasurers shall exercise such powers and perform such duties as are provided for them in these Bylaws and as may be assigned to them, or any of them, by the Board of Directors, the Chief Executive Officer or the Treasurer.
Section 4.12. The Controller. The Controller shall have general charge and supervision of financial reports; he shall maintain adequate records of all assets, liabilities and transactions of the Corporation; he shall keep the books and accounts and cause adequate audits thereof to be made regularly; he shall exercise a general check upon the disbursements of funds of the Corporation; and in general shall perform all duties incident to the office of a controller of a corporation, and shall exercise such other powers and perform such other duties as may be assigned to him by the Board of Directors or the Chief Executive Officer.
Section 4.13. The Assistant Controllers. In the absence or disability of the Controller, the Assistant Controller designated by the Controller shall perform all the duties of the Controller and, when so acting, shall have all the powers of and be subject to all the restrictions upon the Controller. The Assistant Controllers shall exercise such other powers and perform such other duties as from time to time may be assigned to them, or any of them, by the Board of Directors, the Chief Executive Officer or the Controller.
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ARTICLE
V
AUTHORITY TO ACT AND SIGN FOR THE CORPORATION
Section 5.1. Contracts, Agreements, Checks and Other Instruments. Except as may be otherwise provided by statute or by the Board of Directors, the President, any Vice President, the Secretary, the Treasurer, and each of them, may make, sign, endorse, verify, acknowledge and deliver, in the name and on behalf of the Corporation, all deeds, leases and other conveyances, contracts, agreements, checks, notes, drafts and other commercial paper, bonds, assignments, bills of sale, releases, reports and all other instruments and documents deemed necessary or advisable by the officer or officers executing the same for carrying on the business and affairs of the Corporation, subject, however, to Section 5.4 relating to stock certificates of the Corporation, to Section 5.5 relating to execution of proxies and to Section 5.6 relating to securities held by the Corporation.
Section 5.2. Bank Accounts; Deposits; Checks, Drafts and Orders Issued in the Corporation’s Name. Except as otherwise provided by the Board of Directors, any two of the following officers: the President, any Vice President, and the Treasurer may from time to time, (1) open and keep in the name and on behalf of the Corporation, with such banks, trust companies or other depositories as they may designate, general and special bank accounts for the funds of the Corporation, (2) terminate any such bank accounts and (3) select and contract to rent and maintain safe deposit boxes with depositories as they may designate and terminate such contracts and authorize access to any safe deposit box by any two employees designated for such purposes, at least one of whom shall be an officer, and revoke such authority. Any such action by two of the officers as specified above shall be made by an instrument in writing signed by such two officers.
All funds and securities of the Corporation shall be deposited in such banks, trust companies and other depositories as are designated by the Board of Directors or by the aforesaid officers in the manner hereinabove provided, and for the purpose of such deposits, the President, any Vice President, the Secretary, the Treasurer or an Assistant Treasurer, and each of them, or any other person or persons authorized by the Board of Directors, may endorse, assign and deliver checks, notes, drafts, and other orders for the payment of money which are payable to the Corporation. Except as otherwise provided by the Board of Directors, all checks, drafts or orders for the payment of money, drawn in the name of the Corporation, may be signed by the President, any Executive or Senior Vice President, the Secretary or the Treasurer or by any other officers or any employees of the Corporation who shall from time to time be designated to sign checks, drafts, or orders on all accounts or on any specific account of the Corporation by an “instrument of designation” signed by any two of the following officers: the President, any Executive or Senior Vice President, and the Treasurer.
Section 5.3. Delegation of Authority. The Board of Directors, the President, any Vice President, the Treasurer or the Secretary may appoint such managers and attorneys and agents of the Corporation (who also may be employees of the Corporation) as may be deemed desirable who shall serve for such periods, have such powers, bear such titles and perform such duties as the Board of Directors, the President, any Vice President, the Treasurer or the Secretary may from time to time prescribe.
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Section 5.4. Stock Certificates. All certificates of stock issued by the Corporation shall be executed in accordance with Section 6.1 of these Bylaws.
Section 5.5. Voting of Stock in Other Corporations. Stock in other corporations, which may from time to time be held by the Corporation, may be represented and voted at any meeting of stockholders of such other corporation by proxy executed in the name of the Corporation by the President, any Executive Vice President or the Treasurer, with the corporate seal affixed and attested by the Secretary.
Section 5.6. Sale and Transfer of Securities. The President or any Executive or Senior Vice President, the Treasurer or the Secretary are authorized to sell, transfer, endorse and assign any and all shares of stock, bonds and other securities owned by or standing in the name of the Corporation. The executing officers or officer may execute and deliver in the name and on behalf of the Corporation any instrument deemed necessary or advisable by the executing officers or officer to accomplish such transactions.
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ARTICLE
VI
STOCK
Section 6.1. Certificates of Stock. Each holder of stock shall be entitled to have a certificate or certificates, certifying the number and kind of shares owned by him in the Corporation signed by the President or an Executive Vice President and the Secretary and sealed with the seal of the Corporation. Where such certificate is signed by a transfer agent and by a registrar, the signatures of Corporation officers and the corporate seal may be facsimile, engraved or printed. In case any officer who shall have signed, or whose facsimile signature shall have been used on any such certificate, shall cease to be such officer of the Corporation, whether caused by death, resignation or otherwise, before such certificate shall have been delivered by the Corporation, such certificate shall nevertheless be deemed to have been adopted by the Corporation and may be issued and delivered as though the person who signed the same, or whose facsimile signature shall have been used thereon, had not ceased to be such officer of the Corporation. The certificates for shares of the capital stock of the Corporation shall be in such forms as shall be approved by the Board of Directors.
Section 6.2. Transfer of Stock. Shares of stock shall be transferable only on the books of the Corporation by the holder thereof, in person or by duly authorized attorney, upon the surrender of the certificate, properly endorsed, representing the shares to be transferred.
Section 6.3. Transfer Agents and Registrars. The Corporation may have a transfer agent and a registrar of its stock for different locations appointed by the Board of Directors from time to time. The Board of Directors may direct that the functions of transfer agent and registrar be combined and appoint a single agency to perform both functions at one or more locations. Duties of the transfer agent, registrar and combined agency may be defined from time to time by the Board of Directors. No certificate of stock shall be valid until countersigned by a transfer agent and until registered by a registrar even if both functions are performed by a single agency.
Section 6.4. Record Dates. The Board of Directors shall have power to fix in advance a record date to determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action and such record date shall not be more than sixty nor less than ten days before the date of any meeting, nor more than sixty days prior to any other action.
Section 6.5. Electronic Securities Recordation. Notwithstanding the provisions of Section 6.1 of this Article VI, the Corporation may adopt a system of issuance, recordation and transfer of its shares by electronic or other means not involving any issuance of certificates, provided the use of such system by the Corporation is permitted in accordance with applicable law.
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ARTICLE
VII
SUNDRY PROVISIONS
Section 7.1. Offices. The Corporation’s registered office shall be in the City of Wilmington, County of New Castle. The Corporation may also have other offices at such other places as the business of the Corporation may require.
Section 7.2. Seal. The corporate seal of the Corporation shall have inscribed thereon the following words and figures:
WestRock Company 2018 Incorporated Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. A duplicate seal or duplicate seals may be provided and kept for the necessary purposes of the Corporation.
Section 7.3. Books and Records. The Board of Directors may determine from time to time whether, and, if allowed, when and under what conditions and regulations, the books and records of the Corporation, or any of them, shall be open to the inspection of stockholders, and the rights of stockholders in this respect are and shall be limited accordingly (except as otherwise provided by statute). Under no circumstances shall any stockholder have the right to inspect any book or record or receive any statement for an improper or illegal purpose. Subject to the provisions of statutes relating thereto, the books and records of the Corporation may be kept outside the State of Delaware at such places as may be from time to time designated by the Board of Directors.
Section 7.4. Fiscal Year. Unless otherwise ordered by the Board of Directors, the fiscal year of the Corporation shall be twelve calendar months beginning on the first day of October in each year.
Section 7.5. Independent Public Accountants. The Audit Committee of the Board of Directors shall appoint annually an independent public accountant or firm of independent public accountants to audit the books of the Corporation for each fiscal year; this appointment shall be subject to shareholder ratification at the annual meeting next succeeding the appointment.
Section 7.6. Waiver of Notice. Any shareholder or director may waive any notice required to be given by law or by the provisions of the Certificate of Incorporation or by these Bylaws; provided that such waiver shall be in writing and signed by such shareholder or director or by the duly authorized attorney of the shareholder, either before or after the meeting, notice of which is being waived.
Section 7.7. Amendments. Notwithstanding anything to the contrary in these Bylaws, the last sentence of Section 2.4, Section 2.14, Section 2.15, the fourth and fifth sentences of Section 4.1, the last sentence of Section 4.3 and this Section 7.7 may be modified, amended or repealed, and any Bylaw provision inconsistent with such provisions, may be adopted, by the Board of Directors, only by the affirmative vote of at least three-fourths of the whole Board of Directors. Subject to the preceding sentence, the Board of Directors shall have power to make, alter and amend any Bylaws of the Corporation by a vote of a majority of the whole Board at any regular meeting of the Board of Directors, or any special meeting of the Board of Directors if notice of the proposed Bylaw, alteration or amendment be contained in the notice of such special meeting; provided, however, that no Bylaw shall be deemed made, altered or amended, by the Board of Directors unless the resolution authorizing the same shall specifically state that a Bylaw is thereby being made, altered or amended. Except as otherwise provided in these Bylaws or the Certificate of Incorporation, the stockholders of the Corporation may make, alter, amend or repeal any Bylaws of the Corporation at any annual or special meeting at which a majority of the total votes entitled to be cast at such meeting is present in person or by proxy by the affirmative vote of the majority of the shares present in person or represented by proxy at such meeting, when notice of any such proposed addition, alteration, amendment or repeal shall have been given in the notice of such meeting; provided, that, notwithstanding anything to the contrary in these Bylaws, Section 1.3, Section 2.1, Section 2.2, the last sentence of Section 2.3, Section 2.4, Section 2.7, Section 2.8, Section 2.9, Section 2.12, Section 3.1, Section 3.2, Section 3.3 or this last sentence of this Section 7.7 may be modified, amended or repealed, and any Bylaw provision inconsistent with such provisions may be adopted, by the stockholders of the Corporation only by the affirmative vote of the holders of at least 75 percent of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors.
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Section 7.8. Exclusive Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the Certificate of Incorporation or these Bylaws (as either may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware).
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Exhibit 4.1
WESTROCK RKT, LLC
as Issuer
and
THE GUARANTORS PARTY HERETO
____________________
4.450% SENIOR NOTES DUE 2019
4.900% SENIOR NOTES DUE 2022
____________________
SUPPLEMENTAL INDENTURE NO. 4
DATED AS OF NOVEMBER 2, 2018
to
INDENTURE
DATED AS OF FEBRUARY 22, 2012
____________________
HSBC BANK USA, NATIONAL ASSOCIATION
as Trustee
SUPPLEMENTAL INDENTURE NO. 4, dated as of November 2, 2018, among WestRock RKT, LLC, a Georgia limited liability company (formerly known as Rock-Tenn Company, the “Company”), WRKCo Inc., a Delaware corporation (“WRKCo”), WestRock MWV, LLC, a Delaware limited liability company (“WRK MWV” and, together with WRKCo, the “Existing Guarantors”), WestRock Company, a Delaware corporation (the “New Guarantor” and, together with the Company and the Existing Guarantors, the “Obligors”), and HSBC Bank USA, National Association, as trustee (the “Trustee”) under the hereafter defined Indenture.
WHEREAS, the Company and the Guarantors party thereto heretofore executed and delivered to the Trustee an Indenture dated as of February 22, 2012, as supplemented by Supplemental Indenture No. 1, dated as of November 7, 2013, Supplemental Indenture No. 2, dated as of February 21, 2014 and Supplemental Indenture No. 3, dated as of July 1, 2015 (the “Indenture”), in respect of the Company’s 4.450% Senior Notes due 2019 and 4.900% Senior Notes due 2022 (the “Notes”);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of January 28, 2018, among the New Guarantor, WRKCo, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, the New Guarantor will become the ultimate parent of the Company;
WHEREAS, pursuant to a Certificate of Conversion filed September 30, 2018, the Company converted into a Georgia limited liability company with the name WestRock RKT, LLC;
WHEREAS, the New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Company under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture (the “Guarantee”);
WHEREAS, pursuant to Section 9.1(7) of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture No. 4 (the “Supplemental Indenture”) without the consent of Holders of the Notes; and
WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Obligors and the execution and delivery hereof have been in all respects duly authorized by the Obligors.
NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE ONE
REAFFIRMATION AND ACCESSION
SECTION 1.01. Reaffirmation. The Company hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.
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SECTION 1.02. Note Guarantee.
(a) The New Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guarantees the Notes and obligations of the Issuer under the Notes and the Indenture, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of such Holder, that: (i) the principal of and premium, if any and interest on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Issuer to the Holders or the Trustee under the Notes and the Indenture shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. The Guarantee shall be a guarantee of payment and not of collection.
(b) The New Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the New Guarantor or any Existing Guarantor.
(c) The New Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or any other Person, protest, notice and all demands whatsoever and covenants that the Guarantee shall not be discharged as to any Note except by complete performance of the obligations contained in such Note or as provided for in this Supplemental Indenture. The New Guarantor hereby agrees that, in the event of a default in payment of principal or premium, if any, or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in the Indenture, directly against the New Guarantor to enforce the Guarantee without first proceeding against the Company or any other Guarantor. The New Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, the New Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or the New Guarantor or any Existing Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the New Guarantor or any Existing Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of the Indenture.
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(e) The New Guarantor further agrees that, as between the New Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article VI of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the New Guarantor for the purpose of the Guarantee.
SECTION 1.03. Severability. In case any provision of any guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.04. Limitation of Guarantors’ Liability. The New Guarantor and by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that the Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders, the Existing Guarantors and the New Guarantor hereby irrevocably agree that the obligations of the New Guarantor under its Guarantee shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of the New Guarantor and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor or the New Guarantor in respect of the obligations of such Existing Guarantor or the New Guarantor under its Guarantee, result in the obligations of the New Guarantor under its Guarantee constituting a fraudulent transfer or conveyance.
SECTION 1.05. Benefits Acknowledged. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 1.06. Termination of Guarantee. The Guarantee shall be automatically released and shall terminate upon (i) the merger of the New Guarantor with or into any other Obligor, (ii) the consolidation of the New Guarantor with any other Obligor or (iii) the transfer of all or substantially all of the assets of the New Guarantor to any other Obligor. At the request of the Company, the Trustee will execute and deliver any documents, instructions or instruments evidencing any such release.
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ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
SECTION 2.02. Indenture. Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. For the avoidance of doubt, the provisions of Article 10 of the Indenture shall not apply to the Guarantee.
SECTION 2.03. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION 2.04. Successors. All agreements of the Company, the New Guarantor and each Existing Guarantor in this Supplemental Indenture and the Notes shall bind their respective successors to the extent set forth in the Indenture.
SECTION 2.05. Multiple Counterparts. This Supplemental Indenture may be signed in any number of counterparts each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Supplemental Indenture.
SECTION 2.06. Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.
SECTION 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, the Existing Guarantors and the New Guarantor, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company, the Existing Guarantors and the New Guarantor by corporate action or otherwise, (iii) the due execution hereof by the Company, the Existing Guarantors and the New Guarantor and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.
Very truly yours, | |||
WESTROCK RKT, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK COMPANY, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WRKCO INC., | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK MWV, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer |
[Signature Page to Supplemental Indenture]
HSBC BANK USA, NATIONAL ASSOCIATION, | |||
as Trustee | |||
by | |||
/s/ Efren Almazan | |||
Name: Efren Almazan | |||
Title: Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.2
WESTROCK RKT, LLC
as Issuer
and
THE GUARANTORS PARTY HERETO
____________________
3.500% SENIOR NOTES DUE 2020
4.000% SENIOR NOTES DUE 2023
____________________
SUPPLEMENTAL INDENTURE NO. 4
DATED AS OF NOVEMBER 2, 2018
to
INDENTURE
DATED AS OF SEPTEMBER 11, 2012
____________________
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
SUPPLEMENTAL INDENTURE NO. 4, dated as of November 2, 2018, among WestRock RKT, LLC, a Georgia limited liability company (as successor to Rock-Tenn Company, the “Company”), WRKCo Inc., a Delaware corporation (“WRKCo”), WestRock MWV, LLC, a Delaware limited liability company (“WRK MWV” and, together with WRKCo, the “Existing Guarantors”), WestRock Company, a Delaware corporation (the “New Guarantor” and, together with the Company and the Existing Guarantors, the “Obligors”), and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) under the hereafter defined Indenture.
WHEREAS, the Company and the Guarantors party thereto heretofore executed and delivered to the Trustee an Indenture dated as of September 11, 2012, as supplemented by Supplemental Indenture No. 1, dated as of November 7, 2013, Supplemental Indenture No. 2, dated as of February 21, 2014 and Supplemental Indenture No. 3, dated as of July 1, 2015 (the “Indenture”), in respect of the Company’s 3.500% Senior Notes due 2020 and 4.000% Senior Notes due 2023 (the “Notes”);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of January 28, 2018, among the New Guarantor, WRKCo, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, the New Guarantor will become the ultimate parent of the Company;
WHEREAS, the New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Company under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture (the “Guarantee”);
WHEREAS, pursuant to Section 9.1(7) of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture No. 4 (the “Supplemental Indenture”) without the consent of Holders of the Notes; and
WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Obligors and the execution and delivery hereof have been in all respects duly authorized by the Obligors.
NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE ONE
REAFFIRMATION AND ACCESSION
SECTION 1.01. Reaffirmation. The Company hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.
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SECTION 1.02. Note Guarantee.
(a) The New Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guarantees the Notes and obligations of the Issuer under the Notes and the Indenture, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of such Holder, that: (i) the principal of and premium, if any and interest on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Issuer to the Holders or the Trustee under the Notes and the Indenture shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. The Guarantee shall be a guarantee of payment and not of collection.
(b) The New Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the New Guarantor or any Existing Guarantor.
(c) The New Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or any other Person, protest, notice and all demands whatsoever and covenants that the Guarantee shall not be discharged as to any Note except by complete performance of the obligations contained in such Note or as provided for in this Supplemental Indenture. The New Guarantor hereby agrees that, in the event of a default in payment of principal or premium, if any, or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in the Indenture, directly against the New Guarantor to enforce the Guarantee without first proceeding against the Company or any other Guarantor. The New Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, the New Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or the New Guarantor or any Existing Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the New Guarantor or any Existing Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of the Indenture.
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(e) The New Guarantor further agrees that, as between the New Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article VI of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the New Guarantor for the purpose of the Guarantee.
SECTION 1.03. Severability. In case any provision of any guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.04. Limitation of Guarantors’ Liability. The New Guarantor and by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that the Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders, the Existing Guarantors and the New Guarantor hereby irrevocably agree that the obligations of the New Guarantor under its Guarantee shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of the New Guarantor and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor or the New Guarantor in respect of the obligations of such Existing Guarantor or the New Guarantor under its Guarantee, result in the obligations of the New Guarantor under its Guarantee constituting a fraudulent transfer or conveyance.
SECTION 1.05. Benefits Acknowledged. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 1.06. Termination of Guarantee. The Guarantee shall be automatically released and shall terminate upon (i) the merger of the New Guarantor with or into any other Obligor, (ii) the consolidation of the New Guarantor with any other Obligor or (iii) the transfer of all or substantially all of the assets of the New Guarantor to any other Obligor. At the request of the Company, and subject to Section 11.4 of the Indenture, the Trustee will execute and deliver any documents, instructions or instruments evidencing any such release.
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ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
SECTION 2.02. Indenture. Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. For the avoidance of doubt, the provisions of Article 10 of the Indenture shall not apply to the Guarantee.
SECTION 2.03. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION 2.04. Successors. All agreements of the Company, the New Guarantor and each Existing Guarantor in this Supplemental Indenture and the Notes shall bind their respective successors to the extent set forth in the Indenture.
SECTION 2.05. Multiple Counterparts. This Supplemental Indenture may be signed in any number of counterparts each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Supplemental Indenture.
SECTION 2.06. Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.
SECTION 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, the Existing Guarantors and the New Guarantor, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company, the Existing Guarantors and the New Guarantor by corporate action or otherwise, (iii) the due execution hereof by the Company, the Existing Guarantors and the New Guarantor and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.
Very truly yours, | |||
WESTROCK RKT, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK COMPANY, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WRKCO INC., | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK MWV, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer |
[Signature Page to Supplemental Indenture]
the bank of new york mellon trust company, n.a., | |||
as Trustee | |||
by | |||
/s/ Karen Yu | |||
Name: Karen Yu | |||
Title: Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.3
WESTROCK MWV, LLC
as Issuer,
THE GUARANTORS PARTY HERETO
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
____________________
Eighth Supplemental Indenture
Dated as of November 2, 2018
to
Indenture
Dated as of July 15, 1982
____________________
EIGHTH SUPPLEMENTAL INDENTURE (this “Eighth Supplemental Indenture”), dated as of November 2, 2018, among WestRock MWV, LLC, a Delaware limited liability company (as successor to The Mead Corporation, the “Company”), WRKCo Inc., a Delaware corporation (“WRKCo”), WestRock RKT, LLC, a Georgia limited liability company (“WRK RKT” and, together with WRKCo, the “Existing Guarantors”), WestRock Company, a Delaware corporation (the “New Guarantor” and, together with the Existing Guarantors and the Company, the “Obligors”), and Deutsche Bank Trust Company Americas (as successor to Bankers Trust Company), a New York banking corporation, as trustee (the “Trustee”) under the hereafter defined Indenture.
WHEREAS, the Company executed and delivered to the Trustee an indenture (as previously amended and supplemented, the “Indenture”), dated as of July 15, 1982, providing for the issuance and sale by the Company from time to time of its unsecured debentures, notes or other evidences of indebtedness (the “Securities”, which term shall include any Securities issued under the Indenture after the date hereof);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of January 28, 2018, among the New Guarantor, WRKCo, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, the New Guarantor will become the ultimate parent of the Company;
WHEREAS, the New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Company under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture (the “Guarantee”);
WHEREAS, the Company proposes in and by this Eighth Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to Securities issued thereunder;
WHEREAS, pursuant to Section 901(9) of the Indenture, the Trustee is authorized to execute and deliver this Eighth Supplemental Indenture without the consent of Holders of the Securities; and
WHEREAS, all the conditions and requirements necessary to make this Eighth Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Obligors and the execution and delivery thereof have been in all respects duly authorized by the Obligors.
NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Securities, as follows:
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ARTICLE ONE
REAFFIRMATION AND ACCESSION
SECTION 1.01. Reaffirmation. The Company hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.
SECTION 1.02. Note Guarantee.
(a) The New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Eighth Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Company under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. The New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of the New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).
(b) The New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(c) The New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Company and any right to require a proceeding first against the Company or any other Person. The obligations of the New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Securities of any series.
(d) The obligation of the New Guarantor to make any payment hereunder may be satisfied by causing the Company or another Obligor to make such payment. If any Holder of any Security or the Trustee is required by any court or otherwise to return to the Company or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) The New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Securities in enforcing any of their respective rights under its Guarantee.
(f) Any term or provision of this Eighth Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of the New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Eighth Supplemental Indenture, as it relates to the New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
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SECTION 1.03. Benefits Acknowledged. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 1.04. Termination of Guarantee. The Guarantee shall be automatically released and shall terminate upon (i) the merger of the New Guarantor with or into any other Obligor, (ii) the consolidation of the New Guarantor with another Obligor or (iii) the transfer of all or substantially all of the assets of the New Guarantor to another Obligor. At the request of the Company, the Trustee will execute and deliver any documents, instructions or instruments evidencing any such release.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. Terms Defined. For all purposes of this Eighth Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture.
SECTION 2.02. This Eighth Supplemental Indenture. This Eighth Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part of it, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed.
SECTION 2.03. Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.
SECTION 2.04. Governing Law. THIS EIGHTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.05. Counterparts. This Eighth Supplemental Indenture may be executed in multiple counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument.
SECTION 2.06. Headings. The headings of this Eighth Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Obligors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Obligors by corporate action or otherwise, (iii) the due execution hereof by the Obligors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
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SECTION 2.08. Separability. In case one or more of the provisions contained in this Eighth Supplemental Indenture or in the Securities shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Eighth Supplemental Indenture or of the Securities, but this Eighth Supplemental Indenture and the Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 2.09. Successors and Assigns. All agreements of the Company in this Eighth Supplemental Indenture and the Securities shall bind its successors and all agreements of the Trustee in this Eighth Supplemental Indenture shall bind its successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be duly executed by their respective authorized officers as of the date first written above.
Very truly yours, | |||
WESTROCK MWV, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK COMPANY, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WRKCO INC., | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK RKT, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer |
[Signature Page to Supplemental Indenture]
DEUTSCHE BANK TRUST COMPANY AMERICAS, | |||
By: Deutsche Bank National Trust Company | |||
as Trustee | |||
by | |||
/s/ Chris Niesz | |||
Name: Chris Niesz | |||
Title: Vice President | |||
by | |||
/s/ Debra A. Schwalb | |||
Name: Debra A. Schwalb | |||
Title: Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.4
WESTROCK MWV, LLC
as Issuer,
THE GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK MELLON
as Trustee
____________________
Fourth Supplemental Indenture
Dated as of November 2, 2018
to
Indenture
Dated as of March 1, 1983
____________________
FOURTH SUPPLEMENTAL INDENTURE (this “Fourth Supplemental Indenture”), dated as of November 2, 2018, among WestRock MWV, LLC, a Delaware limited liability company (as successor to Westvaco Corporation, the “Company”), WRKCo Inc., a Delaware corporation (“WRKCo”), WestRock RKT, LLC, a Georgia limited liability company (“WRK RKT” and, together with WRKCo, the “Existing Guarantors”), WestRock Company, a Delaware corporation (the “New Guarantor” and, together with the Existing Guarantors and the Company, the “Obligors”), and The Bank of New York Mellon (as successor to Irving Trust Company), a New York banking corporation, as trustee (the “Trustee”) under the hereafter defined Indenture.
WHEREAS, the Company executed and delivered to the Trustee an indenture (as previously amended and supplemented, the “Indenture”), dated as of March 1, 1983, providing for the issuance and sale by the Company from time to time of its unsecured debentures, notes or other evidences of indebtedness (the “Securities”, which term shall include any Securities issued under the Indenture after the date hereof);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of January 28, 2018, among the New Guarantor, WRKCo, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, the New Guarantor will become the ultimate parent of the Company;
WHEREAS, the New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Company under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture (the “Guarantee”);
WHEREAS, the Company proposes in and by this Fourth Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to Securities issued thereunder;
WHEREAS, pursuant to Section 901(9) of the Indenture, the Trustee is authorized to execute and deliver this Fourth Supplemental Indenture without the consent of Holders of the Securities; and
WHEREAS, all the conditions and requirements necessary to make this Fourth Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Obligors and the execution and delivery thereof have been in all respects duly authorized by the Obligors.
NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Securities, as follows:
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ARTICLE ONE
REAFFIRMATION AND ACCESSION
SECTION 1.01. Reaffirmation. The Company hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.
SECTION 1.02. Note Guarantee.
(a) The New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Fourth Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Company under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. The New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of the New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).
(b) The New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(c) The New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Company and any right to require a proceeding first against the Company or any other Person. The obligations of the New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Securities of any series.
(d) The obligation of the New Guarantor to make any payment hereunder may be satisfied by causing the Company or another Obligor to make such payment. If any Holder of any Security or the Trustee is required by any court or otherwise to return to the Company or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) The New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Securities in enforcing any of their respective rights under its Guarantee.
(f) Any term or provision of this Fourth Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of the New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Fourth Supplemental Indenture, as it relates to the New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
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SECTION 1.03. Benefits Acknowledged. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 1.04. Termination of Guarantee. The Guarantee shall be automatically released and shall terminate upon (i) the merger of the New Guarantor with or into any other Obligor, (ii) the consolidation of the New Guarantor with another Obligor or (iii) the transfer of all or substantially all of the assets of the New Guarantor to another Obligor. At the request of the Company, and subject to Section 102 of the Indenture, the Trustee will execute and deliver any documents, instructions or instruments evidencing any such release.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. Terms Defined. For all purposes of this Fourth Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture.
SECTION 2.02. This Fourth Supplemental Indenture. This Fourth Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part of it, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed.
SECTION 2.03. Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.
SECTION 2.04. Governing Law. THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.05. Counterparts. This Fourth Supplemental Indenture may be executed in multiple counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument.
SECTION 2.06. Headings. The headings of this Fourth Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Obligors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Obligors by corporate action or otherwise, (iii) the due execution hereof by the Obligors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
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SECTION 2.08. Separability. In case one or more of the provisions contained in this Fourth Supplemental Indenture or in the Securities shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Fourth Supplemental Indenture or of the Securities, but this Fourth Supplemental Indenture and the Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 2.09. Successors and Assigns. All agreements of the Company in this Fourth Supplemental Indenture and the Securities shall bind its successors and all agreements of the Trustee in this Fourth Supplemental Indenture shall bind its successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed by their respective authorized officers as of the date first written above.
Very truly yours, | |||
WESTROCK MWV, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK COMPANY, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WRKCO INC., | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK RKT, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer |
[Signature Page to Supplemental Indenture]
THE BANK OF NEW YORK MELLON, | |||
as Trustee | |||
by | |||
/s/ Francine Kincaid | |||
Name: Francine Kincaid | |||
Title: Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.5
WESTROCK MWV, LLC
as Issuer,
THE GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK MELLON
as Trustee
____________________
Fifth Supplemental Indenture
Dated as of November 2, 2018
to
Indenture
Dated as of February 1, 1993
____________________
FIFTH SUPPLEMENTAL INDENTURE (this “Fifth Supplemental Indenture”), dated as of November 2, 2018, among WestRock MWV, LLC, a Delaware limited liability company (as successor to MeadWestvaco Corporation, the “Company”), WRKCo Inc., a Delaware corporation (“WRKCo”), WestRock RKT, LLC, a Georgia limited liability company (“WRK RKT” and, together with WRKCo, the “Existing Guarantors”), WestRock Company, a Delaware corporation (the “New Guarantor” and, together with the Existing Guarantors and the Company, the “Obligors”), and The Bank of New York Mellon (as successor to The First National Bank of Chicago), a New York banking corporation, as trustee (the “Trustee”) under the hereafter defined Indenture.
WHEREAS, the Company executed and delivered to the Trustee an indenture (as previously amended and supplemented, the “Indenture”), dated as of February 1, 1993, providing for the issuance and sale by the Company from time to time of its unsecured debentures, notes or other evidences of indebtedness (the “Securities”, which term shall include any Securities issued under the Indenture after the date hereof);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of January 28, 2018, among the New Guarantor, WRKCo, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, the New Guarantor will become the ultimate parent of the Company;
WHEREAS, the New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Company under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture (the “Guarantee”);
WHEREAS, the Company proposes in and by this Fifth Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to Securities issued thereunder;
WHEREAS, pursuant to Section 901(9) of the Indenture, the Trustee is authorized to execute and deliver this Fifth Supplemental Indenture without the consent of Holders of the Securities; and
WHEREAS, all the conditions and requirements necessary to make this Fifth Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Obligors and the execution and delivery thereof have been in all respects duly authorized by the Obligors.
NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Securities, as follows:
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ARTICLE ONE
REAFFIRMATION AND ACCESSION
SECTION 1.01. Reaffirmation. The Company hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.
SECTION 1.02. Note Guarantee.
(a) The New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Fifth Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Company under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. The New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of the New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).
(b) The New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(c) The New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Company and any right to require a proceeding first against the Company or any other Person. The obligations of the New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Securities of any series.
(d) The obligation of the New Guarantor to make any payment hereunder may be satisfied by causing the Company or another Obligor to make such payment. If any Holder of any Security or the Trustee is required by any court or otherwise to return to the Company or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) The New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Securities in enforcing any of their respective rights under its Guarantee.
(f) Any term or provision of this Fifth Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of the New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Fifth Supplemental Indenture, as it relates to the New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
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SECTION 1.03. Benefits Acknowledged. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 1.04. Termination of Guarantee. The Guarantee shall be automatically released and shall terminate upon (i) the merger of the New Guarantor with or into any other Obligor, (ii) the consolidation of the New Guarantor with another Obligor or (iii) the transfer of all or substantially all of the assets of the New Guarantor to another Obligor. At the request of the Company, and subject to Section 102 of the Indenture, the Trustee will execute and deliver any documents, instructions or instruments evidencing any such release.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. Terms Defined. For all purposes of this Fifth Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture.
SECTION 2.02. This Fifth Supplemental Indenture. This Fifth Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part of it, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed.
SECTION 2.03. Effectiveness. The provisions of this Fifth Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.
SECTION 2.04. Governing Law. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.05. Counterparts. This Fifth Supplemental Indenture may be executed in multiple counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument.
SECTION 2.06. Headings. The headings of this Fifth Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Fifth Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Obligors, or for or with respect to (i) the validity or sufficiency of this Fifth Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Obligors by corporate action or otherwise, (iii) the due execution hereof by the Obligors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
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SECTION 2.08. Separability. In case one or more of the provisions contained in this Fifth Supplemental Indenture or in the Securities shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Fifth Supplemental Indenture or of the Securities, but this Fifth Supplemental Indenture and the Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 2.09. Successors and Assigns. All agreements of the Company in this Fifth Supplemental Indenture and the Securities shall bind its successors and all agreements of the Trustee in this Fifth Supplemental Indenture shall bind its successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed by their respective authorized officers as of the date first written above.
Very truly yours, | |||
WESTROCK MWV, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK COMPANY, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WRKCO INC., | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK RKT, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer |
[Signature Page to Supplemental Indenture]
THE BANK OF NEW YORK MELLON, | |||
as Trustee | |||
by | |||
/s/ Francine Kincaid | |||
Name: Francine Kincaid | |||
Title: Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.6
WESTROCK MWV, LLC
as Issuer,
THE GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK MELLON
as Trustee
____________________
Second Supplemental Indenture
Dated as of November 2, 2018
to
Indenture
Dated as of April 2, 2002
____________________
SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of November 2, 2018, among WestRock MWV, LLC, a Delaware limited liability company (as successor to MeadWestvaco Corporation, the “Company”), WRKCo Inc., a Delaware corporation (“WRKCo”), WestRock RKT, LLC, a Georgia limited liability company (“WRK RKT” and, together with WRKCo, the “Existing Guarantors”), WestRock Company, a Delaware corporation (the “New Guarantor” and, together with the Existing Guarantors and the Company, the “Obligors”), and The Bank of New York Mellon (formerly known as The Bank of New York), a New York banking corporation, as trustee (the “Trustee”) under the hereafter defined Indenture.
WHEREAS, the Company executed and delivered to the Trustee an indenture (as previously amended and supplemented, the “Indenture”), dated as of April 2, 2002, providing for the issuance and sale by the Company from time to time of its unsecured debentures, notes or other evidences of indebtedness (the “Securities”, which term shall include any Securities issued under the Indenture after the date hereof);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of January 28, 2018, among the New Guarantor, WRKCo, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, the New Guarantor will become the ultimate parent of the Company;
WHEREAS, the New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Company under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture (the “Guarantee”);
WHEREAS, the Company proposes in and by this Second Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to Securities issued thereunder;
WHEREAS, pursuant to Section 901(9) of the Indenture, the Trustee is authorized to execute and deliver this Second Supplemental Indenture without the consent of Holders of the Securities; and
WHEREAS, all the conditions and requirements necessary to make this Second Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Obligors and the execution and delivery thereof have been in all respects duly authorized by the Obligors.
NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Securities, as follows:
1 |
ARTICLE ONE
REAFFIRMATION AND ACCESSION
SECTION 1.01. Reaffirmation. The Company hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.
SECTION 1.02. Note Guarantee.
(a) The New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Securities (including each Holder of Securities issued under the Indenture after the date of this Second Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Company under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. The New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of the New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).
(b) The New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(c) The New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Company of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Company and any right to require a proceeding first against the Company or any other Person. The obligations of the New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Securities of any series.
(d) The obligation of the New Guarantor to make any payment hereunder may be satisfied by causing the Company or another Obligor to make such payment. If any Holder of any Security or the Trustee is required by any court or otherwise to return to the Company or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) The New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Securities in enforcing any of their respective rights under its Guarantee.
(f) Any term or provision of this Second Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of the New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Second Supplemental Indenture, as it relates to the New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
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SECTION 1.03. Benefits Acknowledged. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 1.04. Termination of Guarantee. The Guarantee shall be automatically released and shall terminate upon (i) the merger of the New Guarantor with or into any other Obligor, (ii) the consolidation of the New Guarantor with another Obligor or (iii) the transfer of all or substantially all of the assets of the New Guarantor to another Obligor. At the request of the Company, and subject to Section 102 of the Indenture, the Trustee will execute and deliver any documents, instructions or instruments evidencing any such release.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. Terms Defined. For all purposes of this Second Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture.
SECTION 2.02. This Second Supplemental Indenture. This Second Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part of it, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed. For the avoidance of doubt, the provisions of Article 14 of the Indenture shall not apply to the Guarantee.
SECTION 2.03. Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.
SECTION 2.04. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.05. Counterparts. This Second Supplemental Indenture may be executed in multiple counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument.
SECTION 2.06. Headings. The headings of this Second Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Obligors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Obligors by corporate action or otherwise, (iii) the due execution hereof by the Obligors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
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SECTION 2.08. Separability. In case one or more of the provisions contained in this Second Supplemental Indenture or in the Securities shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Second Supplemental Indenture or of the Securities, but this Second Supplemental Indenture and the Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 2.09. Successors and Assigns. All agreements of the Company in this Second Supplemental Indenture and the Securities shall bind its successors and all agreements of the Trustee in this Second Supplemental Indenture shall bind its successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed by their respective authorized officers as of the date first written above.
Very truly yours, | |||
WESTROCK MWV, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK COMPANY, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WRKCO INC., | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK RKT, LLC | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer |
[Signature Page to Supplemental Indenture]
THE BANK OF NEW YORK MELLON, | |||
as Trustee | |||
by | |||
/s/ Francine Kincaid | |||
Name: Francine Kincaid | |||
Title: Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.7
WRKCO INC.
as Issuer
and
WESTROCK MWV, LLC
WESTROCK RKT, LLC
and
WESTROCK COMPANY.
as Guarantors
____________________
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 2, 2018
to
INDENTURE
DATED AS OF AUGUST 24, 2017
____________________
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
THIRD SUPPLEMENTAL INDENTURE, dated as of November 2, 2018 (this “Supplemental Indenture”), by and among WRKCo Inc., a Delaware corporation formerly known as WestRock Company (the “Issuer”), WestRock Company, a Delaware corporation (the “New Guarantor”), WestRock MWV, LLC, a Delaware limited liability company (“MWV”), WestRock RKT, LLC, a Georgia limited liability company (“RKT” and, together with MWV, the “Existing Guarantors”), and The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as trustee (the “Trustee”).
WHEREAS, the Issuer and the Existing Guarantors previously executed and delivered an indenture, dated as of August 24, 2017, among the Issuer, the Existing Guarantors and the Trustee (the “Base Indenture” and, as supplemented by the First Supplemental Indenture, dated as of August 24, 2017 and the Second Supplemental Indenture, dated as of March 6, 2018, the “Indenture”), in respect of the Issuer’s 3.000% Senior Notes due 2024, 3.750% Senior Notes Due 2025, 3.375% Senior Notes due 2027 and 4.000% Senior Notes due 2028 (the “Notes”);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of January 28, 2018, among the Issuer, the New Guarantor, KapStone Paper and Packaging Corporation, a Delaware corporation, Whiskey Merger Sub, Inc., a Delaware corporation and Kola Merger Sub, Inc., a Delaware corporation, the Issuer will become a direct, wholly owned subsidiary of the New Guarantor;
WHEREAS, the New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture (the “Guarantee”);
WHEREAS, pursuant to Section 9.1(vi) of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture without the consent of Holders of the Notes;
AND WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Issuer, the Existing Guarantors and the New Guarantor (together the “Obligors”) and the execution and delivery hereof have been in all respects duly authorized by the Obligors.
NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE ONE
REAFFIRMATION AND ACCESSION
SECTION 1.01. Reaffirmation. The Issuer hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.
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SECTION 1.02. Note Guarantee.
(a) The New Guarantor hereby jointly and severally, fully, unconditionally and irrevocably guarantees the Notes and obligations of the Issuer under the Notes and the Indenture, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of such Holder, that: (i) the principal of and premium, if any and interest on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Issuer to the Holders or the Trustee under the Notes and the Indenture shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. The Guarantee shall be a guarantee of payment and not of collection.
(b) The New Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of any Obligor.
(c) The New Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or any other Person, protest, notice and all demands whatsoever and covenants that the Guarantee of the New Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note or as provided for in this Supplemental Indenture. The New Guarantor hereby agrees that, in the event of a default in payment of principal or premium, if any, or interest on such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in the Indenture, directly against the New Guarantor to enforce the Guarantee without first proceeding against the Company or any other Guarantor. The New Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, the New Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or the New Guarantor or any Existing Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the New Guarantor or any Existing Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of the Indenture.
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(e) The New Guarantor further agrees that, as between the New Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article VI of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the New Guarantor for the purpose of the Guarantee.
SECTION 1.03. Severability. In case any provision of any guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.04. Limitation of Guarantors’ Liability. The New Guarantor and by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that the Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders, the Existing Guarantors and the New Guarantor hereby irrevocably agree that the obligations of the New Guarantor under its Guarantee shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of the New Guarantor and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor or the New Guarantor in respect of the obligations of such other Existing Guarantor or the New Guarantor under its guarantee, result in the obligations of the New Guarantor under its Guarantee constituting a fraudulent transfer or conveyance.
SECTION 1.05. Benefits Acknowledged. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 1.06. Termination of Guarantee. The Guarantee shall be automatically released and shall terminate upon (i) the merger of the New Guarantor with or into another Obligor, (ii) the consolidation of the New Guarantor with another Obligor or (iii) the transfer of all or substantially all of the assets of the New Guarantor to another Obligor. At the request of the Company, and subject to Section 11.4 of the Indenture, the Trustee will execute and deliver any documents, instructions or instruments evidencing any such release.
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ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
SECTION 2.02. Indenture. Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. For the avoidance of doubt, the provisions of Article X of the Indenture shall not apply to the Guarantee.
SECTION 2.03. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION 2.04. Successors. All agreements of the Issuer, the New Guarantor and each Existing Guarantor in this Supplemental Indenture and the Notes shall bind their respective successors to the extent set forth in the Indenture.
SECTION 2.05. Multiple Counterparts. This Supplemental Indenture may be signed in any number of counterparts each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Supplemental Indenture.
SECTION 2.06. Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.
SECTION 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Issuer, the Existing Guarantors and the New Guarantor, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Issuer, the Existing Guarantors and the New Guarantor by corporate action or otherwise, (iii) the due execution hereof by the Issuer, the Existing Guarantors and the New Guarantor and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 3 to be duly executed as of the date first written above.
Very truly yours, | |||
WRKCO INC., | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK COMPANY, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
westrock mwv, llc, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer | |||
WESTROCK RKT, LLC, | |||
by | |||
/s/ John D. Stakel | |||
Name: John D. Stakel | |||
Title: Senior Vice President and Treasurer |
[Signature Page to Supplemental Indenture]
the bank of new york mellon trust company, n.a., | |||
as Trustee | |||
by | |||
/s/ Karen Yu | |||
Name: Karen Yu | |||
Title: Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 10.1
EXECUTION VERSION
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this “Agreement”), dated as of November 2, 2018, is by and among WestRock Company (formerly, Whiskey Holdco, Inc.), a Delaware corporation (“Holdco”), WestRock CP, LLC, a Delaware limited liability company (“WestRock CP”), WestRock Converting, LLC (formerly, WestRock Converting Company), a Georgia limited liability company (“WestRock Converting”), WestRock Virginia, LLC (formerly, WestRock Virginia Corporation), a Delaware limited liability company (“WestRock Virginia”, and, together with WestRock CP and WestRock Converting, the “Borrowers”), and CoBank, ACB, as administrative agent under the Credit Agreement (as defined below) (the “Administrative Agent”), under that certain Credit Agreement dated as of July 1, 2015 (as amended, restated or otherwise modified, the “Credit Agreement”), by and among WRKCo Inc. (formerly, WestRock Company), a Delaware corporation (the “Parent”), the Borrowers, the Initial Guarantors, the lenders named therein and such other lenders that thereafter become parties thereto, and the Administrative Agent. Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Credit Agreement.
In connection with the Agreement and Plan of Merger, dated as of January 28, 2018, among Holdco, the Parent, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, and as a condition precedent to the effectiveness of the amendments set forth in Amendment No. 2 to the Credit Agreement, dated as of March 7, 2018, Holdco has elected to become party to, and a Guarantor under, the Credit Agreement.
Accordingly, Holdco and the Borrowers hereby agree as follows with the Administrative Agent, for the benefit of the Lenders:
1. Holdco hereby acknowledges, agrees and confirms that, by its execution of this Agreement, Holdco will be deemed to be a party to, and a “Guarantor” and the “Holdco” under, the Credit Agreement and shall have all of the obligations of a Guarantor and the Holdco thereunder as if it had executed the Credit Agreement. Holdco hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the applicable Credit Documents, including without limitation (a) all of the representations and warranties set forth in Article III of the Credit Agreement and (b) all of the affirmative and negative covenants set forth in Articles V and VI of the Credit Agreement. Without limiting the generality of the foregoing terms of this Paragraph 1, Holdco hereby guarantees, jointly and severally together with the other Guarantors, the prompt payment of the Credit Party Obligations in accordance with Article X of the Credit Agreement.
2. Holdco acknowledges and confirms that it has received a copy of the Credit Agreement and the schedules and exhibits thereto. The information on the schedules to the Credit Agreement is hereby supplemented (to the extent permitted under the Credit Agreement) to reflect the information shown on the attached Schedule A.
3. The Borrowers confirm that the Credit Agreement is, and upon Holdco becoming a Guarantor and the Holdco, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon Holdco becoming a Guarantor and the Holdco, the term “Credit Party Obligations” shall include all obligations of Holdco under the Credit Agreement and under each other Credit Document.
4. Each of the Borrowers and Holdco agrees that at any time and from time to time, upon the written request of the Administrative Agent, it will execute and deliver such further documents and do such further acts as the Administrative Agent may reasonably request in accordance with the terms and conditions of the Credit Agreement in order to effect the purposes of this Agreement.
5. This Agreement (a) may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract and (b) may, upon execution, be delivered by facsimile or electronic mail, which shall be deemed for all purposes to be an original signature.
6. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York. The terms of Sections 9.12, 9.13 and 9.16 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
WESTROCK COMPANY, | ||
a Delaware corporation | ||
By: | /s/ John D. Stakel | |
Name: | John D. Stakel | |
Title: | Senior Vice President and Treasurer |
WESTROCK CP, LLC, | ||||
a Delaware limited liability company | ||||
By: | /s/ John D. Stakel | |||
Name: | John D. Stakel | |||
Title: | Senior Vice President and Treasurer | |||
WESTROCK CONVERTING, LLC, | ||||
a Georgia limited liability company | ||||
By: | /s/ John D. Stakel | |||
Name: | John D. Stakel | |||
Title: | Senior Vice President and Treasurer | |||
WESTROCK VIRGINIA, LLC, | ||||
a Delaware limited liability company | ||||
By: | /s/ John D. Stakel | |||
Name: | John D. Stakel | |||
Title: | Senior Vice President and Treasurer |
IN WITNESS WHEREOF, each of the Borrowers and Holdco has caused this Joinder Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused the same to be accepted by its authorized officer, as of the day and year first above written.
Acknowledged, accepted and agreed: | ||
COBANK, ACB, | ||
as Administrative Agent | ||
By: | /s/ Zachary Carpenter | |
Name: | Zachary Carpenter | |
Title: | Vice President |
SCHEDULE A
to
Joinder Agreement
Schedules to Credit Agreement
None.
Exhibit 10.2
EXECUTION VERSION
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this “Agreement”), dated as of November 2, 2018, is by and among WestRock Company (formerly, Whiskey Holdco, Inc.), a Delaware corporation (“Holdco”), WRKCo Inc. (formerly, WestRock Company), a Delaware corporation (the “Parent Borrower”), and Wells Fargo Bank, National Association, as administrative agent (the “Administrative Agent”) under that certain Credit Agreement dated as of October 31, 2017 (as amended, restated or otherwise modified, the “Credit Agreement”), by and among the Borrowers, the Subsidiaries of the Parent Borrower from time to time party thereto, the lenders from time to time party thereto (the “Lenders”) and the Administrative Agent. Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Credit Agreement.
In connection with the Agreement and Plan of Merger, dated as of January 28, 2018, among Holdco, the Parent Borrower, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, and as a condition precedent to the effectiveness of the amendments set forth in Amendment No. 1 to the Credit Agreement, dated as of March 7, 2018 (“Amendment No. 1”), Holdco has elected to become party to, and a Guarantor under, the Credit Agreement. Pursuant to Section 1 of Amendment No. 1, the Parent Borrower hereby notifies the Administrative Agent that the Acquisition (as defined in Amendment No. 1) has been consummated on the date hereof.
Accordingly, Holdco and the Parent Borrower hereby agree as follows with the Administrative Agent, for the benefit of the Lenders:
1. Holdco hereby acknowledges, agrees and confirms that, by its execution of this Agreement, Holdco will be deemed to be a party to, and a “Guarantor” and the “Holdco” under, the Credit Agreement and shall have all of the obligations of a Guarantor and the Holdco thereunder as if it had executed the Credit Agreement. Holdco hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the applicable Credit Documents, including without limitation (a) all of the representations and warranties set forth in Article III of the Credit Agreement and (b) all of the affirmative and negative covenants set forth in Articles V and VI of the Credit Agreement. Without limiting the generality of the foregoing terms of this Paragraph 1, Holdco hereby guarantees, jointly and severally together with the other Guarantors, the prompt payment of the Credit Party Obligations in accordance with Article X of the Credit Agreement.
2. Holdco acknowledges and confirms that it has received a copy of the Credit Agreement and the schedules and exhibits thereto. The information on the schedules to the Credit Agreement is hereby supplemented (to the extent permitted under the Credit Agreement or Security Documents) to reflect the information shown on the attached Schedule A.
3. The Borrowers confirm that the Credit Agreement is, and upon Holdco becoming a Guarantor and the Holdco, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon Holdco becoming a Guarantor and the Holdco, the term “Credit Party Obligations” shall include all obligations of Holdco under the Credit Agreement and under each other Credit Document.
4. Each of the Parent Borrower and Holdco agrees that at any time and from time to time, upon the written request of the Administrative Agent, it will execute and deliver such further documents and do such further acts as the Administrative Agent may reasonably request in accordance with the terms and conditions of the Credit Agreement in order to effect the purposes of this Agreement.
5. This Agreement (a) may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract and (b) may, upon execution, be delivered by facsimile or electronic mail, which shall be deemed for all purposes to be an original signature.
6. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York. The terms of Sections 9.12, 9.13 and 9.16 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
WESTROCK COMPANY, | ||
a Delaware corporation | ||
By: | /s/ John D. Stakel | |
Name: | John D. Stakel | |
Title: | Senior Vice President and Treasurer |
WRKCO INC., | |||
a Delaware corporation | |||
By: | /s/ John D. Stakel | ||
Name: | John D. Stakel | ||
Title: | Senior Vice President and Treasurer |
IN WITNESS WHEREOF, each of the Parent Borrower and Holdco has caused this Joinder Agreement to be duly executed by its authorized officer and the Administrative Agent, each for the benefit of the Lenders, has caused the same to be accepted by its authorized officer, as of the day and year first above written.
Acknowledged, accepted and agreed:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: | /s/ Kay Reedy | |
Name: | Kay Reedy | |
Title: | Managing Director |
SCHEDULE A
to
Joinder Agreement
Schedules to Credit Agreement
None.
Exhibit 10.3
EXECUTION VERSION
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this “Agreement”), dated as of November 2, 2018 is by and between WestRock Company (formerly, Whiskey Holdco, Inc.), a Delaware corporation (“Holdco”), WRKCo Inc. (formerly, WestRock Company), a Delaware corporation (the “Parent Borrower”), WestRock Company of Canada Holdings Corp./Compagnie de Holdings WestRock du Canada Corp., a Nova Scotia unlimited company (the “Canadian Borrower” and together with the Parent Borrower and any Restricted Subsidiary of the Parent Borrower which the Parent Borrower has designated a Borrower pursuant to Section 2.1(f), 2.2(f) or 2.3(f) of the Credit Agreement, the “Borrowers”), Wells Fargo Bank, National Association, as administrative agent under the Credit Agreement (as defined below) (the “Administrative Agent”) and as multicurrency administrative agent (the “Multicurrency Agent”) under that certain Credit Agreement dated as of July 1, 2015 (as amended, restated or otherwise modified, the “Credit Agreement”), by and among the Borrowers, the Subsidiaries of the Parent Borrower from time to time party thereto, the lenders from time to time party thereto (the “Lenders”), the Administrative Agent and the Multicurrency Agent. Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Credit Agreement.
In connection with the Agreement and Plan of Merger, dated as of January 28, 2018, among Holdco, the Parent Borrower, Whiskey Merger Sub, Inc., a Delaware corporation, Kola Merger Sub, Inc., a Delaware corporation, and KapStone Paper and Packaging Corporation, a Delaware corporation, and as a condition precedent to the effectiveness of the amendments set forth in Amendment No. 3 to the Credit Agreement, dated as of March 7, 2018 (“Amendment No. 3”), Holdco has elected to become party to, and a Guarantor under, the Credit Agreement. Pursuant to Section 1 of Amendment No. 3, the Parent Borrower hereby notifies the Administrative Agent that the Acquisition (as defined in Amendment No. 3) has been consummated on the date hereof.
Accordingly, Holdco and the Borrowers hereby agree as follows with the Administrative Agent and the Multicurrency Agent, for the benefit of the Lenders:
1. Holdco hereby acknowledges, agrees and confirms that, by its execution of this Agreement, Holdco will be deemed to be a party to, and a “U.S. Guarantor”, a “Guarantor” and the “Holdco” under, the Credit Agreement and shall have all of the obligations of a U.S. Guarantor, a Guarantor and Holdco thereunder as if it had executed the Credit Agreement. Holdco hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the applicable Credit Documents, including without limitation (a) all of the representations and warranties set forth in Article III of the Credit Agreement and (b) all of the affirmative and negative covenants set forth in Articles V and VI of the Credit Agreement. Without limiting the generality of the foregoing terms of this Paragraph 1, Holdco hereby guarantees, jointly and severally together with the other Guarantors, the prompt payment of the U.S. Obligations and the Foreign Borrower Obligations in accordance with Article X and Article XI of the Credit Agreement.
2. Holdco acknowledges and confirms that it has received a copy of the Credit Agreement and the schedules and exhibits thereto. The information on the schedules to the Credit Agreement is hereby supplemented (to the extent permitted under the Credit Agreement or Security Documents) to reflect the information shown on the attached Schedule A.
3. The Borrowers confirm that the Credit Agreement is, and upon Holdco becoming a U.S. Guarantor, a Guarantor and the Holdco, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon Holdco becoming a U.S. Guarantor, a Guarantor and the Holdco, the terms “U.S. Obligations” and “Foreign Borrower Obligations” shall include all obligations of Holdco under the Credit Agreement and under each other Credit Document.
4. Each of the Borrowers and Holdco agrees that at any time and from time to time, upon the written request of the Administrative Agent, it will execute and deliver such further documents and do such further acts as the Administrative Agent may reasonably request in accordance with the terms and conditions of the Credit Agreement in order to effect the purposes of this Agreement.
5. This Agreement (a) may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract and (b) may, upon execution, be delivered by facsimile or electronic mail, which shall be deemed for all purposes to be an original signature.
6. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York. The terms of Sections 9.12, 9.13 and 9.16 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
WESTROCK COMPANY, | ||
a Delaware corporation | ||
By: | /s/ John D. Stakel | |
Name: | John D. Stakel | |
Title: | Senior Vice President and Treasurer |
WRKCO INC., | |||
a Delaware corporation | |||
By: | /s/ John D. Stakel | ||
Name: | John D. Stakel | ||
Title: | Senior Vice President and Treasurer | ||
WESTROCK COMPANY OF CANADA HOLDINGS CORP./COMPAGNIE DE HOLDINGS WESTROCK DU CANADA CORP., a Nova Scotia unlimited company | |||
By: | /s/ John D. Stakel | ||
Name: | John D. Stakel | ||
Title: | Senior Vice President and Treasurer |
IN WITNESS WHEREOF, each of the Borrowers and Holdco has caused this Joinder Agreement to be duly executed by its authorized officer, and the Administrative Agent and Multicurrency Agent, each for the benefit of the Lenders, has caused the same to be accepted by its authorized officer, as of the day and year first above written.
Acknowledged, accepted and agreed:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Multicurrency Agent
By: | /s/ Kay Reedy | |
Name: | Kay Reedy | |
Title: | Managing Director |
SCHEDULE A
to
Joinder Agreement
Schedules to Credit Agreement
None.
Exhibit 10.4
EXECUTION VERSION
JOINDER AGREEMENT
This JOINDER AGREEMENT (this “Agreement”), dated as of November 2, 2018, is by and among WestRock Company (formerly, Whiskey Holdco, Inc.), a Delaware corporation (the “New Holdco”) and Coöperatieve Rabobank U.A., New York Branch, in its capacity as administrative agent under the Credit Agreement (as defined below) (the “Administrative Agent”) under that certain Credit Agreement dated as of April 27, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Parent, Borrowers, the various financial institutions party thereto as “Lenders”, and the Administrative Agent. Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Credit Agreement.
WITNESSETH
WHEREAS, pursuant to Section 5.10 of the Credit Agreement, on the Combination Date, New Holdco is required to become a “Guarantor” and the “Holdco” by executing a Guaranty Agreement and becoming a party to the Credit Agreement by executing this Agreement; and
WHEREAS, concurrent with the execution and delivery of this Agreement to the Administrative Agent, New Holdco hereby unconditionally and expressly assumes all of the obligations of a Guarantor and Holdco pursuant to the Credit Agreement and the other Loan Documents.
AGREEMENT
1. New Holdco hereby acknowledges, agrees and confirms that, by its execution of this Agreement, New Holdco will be deemed to be a party to and a “Guarantor” and the “Holdco” under the Credit Agreement and shall have all of the obligations of a Guarantor and the Holdco thereunder as if it had executed the Credit Agreement. New Holdco hereby ratifies and reaffirms, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Credit Agreement and the applicable Loan Documents, including without limitation (a) all of the representations and warranties set forth in Section 3 of the Credit Agreement and (b) all of the affirmative and negative covenants set forth in Sections 5 and 6 of the Credit Agreement.
2. New Holdco acknowledges and confirms that it has received a copy of the Credit Agreement and the exhibits thereto.
3. The Borrowers and Parent confirm that the Credit Agreement is, and upon New Holdco becoming a Guarantor and the Holdco, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon New Holdco becoming a Guarantor and the Holdco, the “Obligations” shall include all obligations of New Holdco under the Credit Agreement and under each other applicable Loan Document.
4. Each Borrower and New Holdco agree that at any time and from time to time, upon the written request of the Administrative Agent, it will execute and deliver such further documents and do such further acts as the Administrative Agent may reasonably request in accordance with the terms and conditions of the Credit Agreement in order to effect the purposes of this Agreement.
5. This Agreement (a) may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract and (b) may, upon execution, be delivered by facsimile or electronic mail, which shall be deemed for all purposes to be an original signature.
6. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York. The terms of Sections 9.9 and 9.10 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
2 |
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and delivered by its officer or officers thereunto duly authorized as of the date first above written.
NEW HOLDCO: | WESTROCK COMPANY, a Delaware corporation | |||
By: | /s/ John D. Stakel | |||
Name: | John D. Stakel | |||
Title: | Senior Vice President and Treasurer |
JOINDER AGREEMENT | S-1 |
ADMINISTRATIVE AGENT: | COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent | |||
By: | /s/ Pieter van der Werff | |||
Name: | Pieter van der Werff | |||
Title: | Vice President | |||
By: | /s/ Christopher Hartofilis | |||
Name: | Christopher Hartofilis | |||
Title: | Executive Director |
JOINDER AGREEMENT | S-2 |