UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
GRAPHIC PACKAGING CORPORATION.
------------------------------
(Name of Issuer)
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
---------------------------
(Title of Class of Securities)
388688 10 3
-----------
(CUSIP Number)
Raphael M. Russo, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
-----------------------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
AUGUST 8, 2003
-----------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box: [_]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Exchange Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
2
CUSIP NO. 388688 10 3
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EXOR Group S.A.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) or 2(e)
[_]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
LUXEMBOURG
--------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING - 0 -
PERSON WITH ----------------------------------------
8 SHARED VOTING POWER
34,222,500 (SEE ITEM 5)
----------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
----------------------------------------
10 SHARED DISPOSITIVE POWER
34,222,500 (SEE ITEM 5)
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
34,222,500 (SEE ITEM 5)
--------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.2% (1) (SEE ITEM 5)
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
------------------------
1 Based on 199,444,048 shares outstanding as of the close of business on
Friday, August 8, 2003.
3
CUSIP NO. 388688 10 3
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Istituto Finanziario Industriale S.p.A.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) or 2(e)
[_]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
ITALY
--------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING - 0 -
PERSON WITH ----------------------------------------
8 SHARED VOTING POWER
34,222,500 (SEE ITEM 5)
----------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
----------------------------------------
10 SHARED DISPOSITIVE POWER
34,222,500 (SEE ITEM 5)
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
34,222,500 (SEE ITEM 5)
--------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.2% (1) (SEE ITEM 5)
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
------------------------
1 Based on 199,444,048 shares outstanding as of the close of business on
Friday, August 8, 2003.
4
CUSIP NO. 388688 10 3
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Giovanni Agnelli e C. S.a.p.az.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) or 2(e)
[_]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
ITALY
--------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING - 0 -
PERSON WITH ----------------------------------------
8 SHARED VOTING POWER
34,222,500 (SEE ITEM 5)
----------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
----------------------------------------
10 SHARED DISPOSITIVE POWER
34,222,500 (SEE ITEM 5)
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
34,222,500 (SEE ITEM 5)
--------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.2% (1) (SEE ITEM 5)
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
------------------------
1 Based on 199,444,048 shares outstanding as of the close of business on
Friday, August 8, 2003.
5
ITEM 1. SECURITY AND COMPANY.
The class of equity securities to which this Schedule 13D
relates is the common stock, par value $0.01 per share (the "Company Common
Stock"), of Graphic Packaging Corporation, a Delaware corporation formerly known
as Riverwood Holding, Inc. (the "Company"). The principal executive offices of
the Company are located at 814 Livingston Court, Marietta, Georgia 30067.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by: (i) EXOR GROUP S.A.
("EXOR"); (ii) Istituto Finanziario Industriale S.p.A. ("IFI"); and (iii)
Giovanni Agnelli e C. S.a.p.az. ("GA") (all such persons in (i) through (iii)
being hereinafter referred to as the "Reporting Persons").
EXOR is a corporation organized under the laws of Luxembourg.
The address of its principal business and principal office is 22-24 Boulevard
Royal, L-2449 Luxembourg. The present principal business activity of EXOR is to
invest and hold participations in selected industries through substantial direct
or indirect equity participations in companies that have a leading position in
their respective industries. EXOR is deemed to be controlled, for purposes of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by IFI and
GA.
IFI is a corporation organized under the laws of Italy. The
present principal business activity of IFI is as a holding company providing
financial and organizational assistance to the companies in which it has a
direct or indirect controlling interest. Such companies include EXOR and a wide
variety of companies involved in diverse areas of business. The address of IFI's
principal business and principal office is Corso Matteotti 26, 10121 Turin,
Italy. IFI is deemed to be controlled, for purposes of the Exchange Act, by GA.
GA is an Italian limited partnership represented by shares.
The present principal business activity of GA is to ensure the cohesion and
continuity of the management of its controlling interest in IFI. The address of
GA's principal business and principal office is Via del Carmine 10, 10122 Turin,
Italy. GA is deemed to be controlled, for purposes of the Exchange Act, by its
General Partners, Messrs. Umberto Agnelli, Gianluigi Gabetti, John Philip Elkann
and Alessandro Giovanni Nasi.
Attached as Schedule A hereto and incorporated by reference
herein is a list of (i) all executive officers and directors of each Reporting
Person which is a corporation, (ii) all general partners of each Reporting
Person which is a partnership, (iii) all persons controlling any of the
foregoing (to the extent not provided herein) and (iv) all executive officers
and directors of any corporations ultimately in control of any of the foregoing.
Such Schedule A also sets forth the address, principal occupation or employment
and, with respect to natural persons, citizenship of each person listed thereon.
6
During the past five years, none of the Reporting Persons (or,
to the knowledge of the Reporting Persons, any of the persons listed on Schedule
A hereto) has been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors) or have been parties to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining further violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On March 27, 1996, EXOR acquired 2,250,000 shares of Class A
common stock, par value $0.01, of Riverwood (the "Original Investment"). EXOR
obtained funds for the purchase of Riverwood common stock from its working
capital.
On March 25, 2003, Riverwood, Graphic Packaging International
Corporation ("GPIC") and Riverwood Acquisition Sub LLC, a wholly-owned
subsidiary of Riverwood ("Acquisition Sub"), entered into an Agreement and Plan
of Merger (as amended by Amendment No. 1 thereto, dated as of July 11, 2003, the
"Merger Agreement"), providing, among other things, for the merger of GPIC with
and into Acquisition Sub, with Acquisition Sub continuing as the surviving
company (the "Merger"). The Merger Agreement together with Amendment No. 1
thereto are included with this Schedule 13D as Exhibits 1 and 2. The summary of
the Merger Agreement described in this Schedule 13D is qualified in its entirety
by the specific language of the Merger Agreement.
The Merger Agreement was approved by the stockholders of GPIC
on August 7, 2003, and the Merger was consummated on August 8, 2003. Pursuant to
the terms of the Merger Agreement, on August 8, 2003, Riverwood filed a
Certificate of Merger with the Secretary of State of Delaware (the "Closing
Date"), and the Merger was effective as of the filing of such certificate (the
"Effective Time"). On June 6, 2003, the board of directors of Riverwood approved
the name change of Riverwood to Graphic Packaging Corporation, effective as of
the Effective Time.
Prior to the completion of the Merger, Riverwood restated its
certificate of incorporation to reclassify its outstanding shares of capital
stock so that each outstanding share of its Class A common stock, par value
$0.01 per share, and Class B common stock, par value $0.01 per share, were
converted to the right to receive 15.21 shares of a new single series of
Riverwood common stock, par value $0.01 per share (the "Riverwood Stock Split").
Prior to the completion of the Merger, Riverwood also entered into a Rights
Agreement, dated as of August 7, 2003 (the "Rights Agreement"), containing
customary terms and conditions for a stockholders rights plan, and designated
500,000 shares of Riverwood preferred stock as Series A junior participating
preferred stock, such shares to be reserved for issuance upon the exercise of
the rights.
At the completion of the Merger, each share of GPIC common
stock, par value $0.01, issued and outstanding immediately before the completion
of the Merger, together with the associated rights issued under the Rights
Agreement, but excluding
7
shares of GPIC common stock owned by Riverwood, GPIC or any of their respective
subsidiaries, was converted, after the Riverwood Stock Split, into one share of
common stock of Riverwood and associated rights issued under the Rights
Agreement.
In connection with the Merger, Clayton, Dubilier & Rice Fund V
Limited Partnership ("CDR Fund V"), EXOR, Riverwood and certain Coors family
stockholders as listed on Schedule B hereto (the "Coors Family Stockholders")
(collectively, the "Stockholders") entered into a Stockholders Agreement, dated
as of March 25, 2003, as amended by an Amendment No. 1, dated as of April 29,
2003, and by an Amendment No. 2, dated as of June 12, 2003 (the "Stockholders
Agreement"), relating to the composition of the Company's board of directors
(the "Board"), committee membership and other matters. In addition, The 1818
Fund II, L.P., HWH Investment Pte. Ltd, J.P. Morgan Partners (BHCA), L.P., First
Plaza Group Trust, Madison Dearborn Capital Partners, L.P., Wolfensohn-River LLC
(collectively, the "Other Riverwood Stockholders"), CDR Fund V, EXOR, the Coors
Family Stockholders and Riverwood entered into an Amended and Restated
Registration Rights Agreement, dated as of March 25, 2003 (the "Registration
Rights Agreement"), providing those stockholders with the right to request
registration of their Company Common Stock or participate in registered
offerings by the Company under certain circumstances. This Schedule 13D
describes the Stockholders Agreement and the Registration Rights Agreement in
Item 6.
The Stockholders Agreement, the Registration Rights Agreement,
and all amendments to such agreements (collectively, the "Agreements") are more
fully described in Item 6 of this Schedule 13D, are included with this Schedule
13D as Exhibits 3, 4, 5 and 6 and are incorporated into this Item 3 by
reference. Any summary of these Agreements and the transactions described in
this Schedule 13D is qualified in its entirety by the specific language of the
Agreements.
ITEM 4. PURPOSE OF TRANSACTION.
As more fully described in Item 6 below, EXOR has entered into
the Stockholders Agreement and Registration Rights Agreement, which contain
provisions regarding, among other things, the registration, disposition and
voting of shares of Company Common Stock, as well as provisions regarding the
composition of the Board.
The Reporting Persons acquired the shares of the Company
Common Stock for investment purposes. Each Reporting Person expects to evaluate
on an ongoing basis the Company's financial condition and prospects and its
interest in, and intentions with respect to, the Company. Accordingly, each
Reporting Person reserves the right to change its plans and intentions at any
time, as it deems appropriate. In particular, each Reporting Person may at any
time and from time to time acquire additional securities of the Company; may
dispose of such securities; may enter into privately negotiated derivative
transactions with institutional counterparties to hedge the market risk of some
or all of its positions in such securities; and/or may continue to hold such
securities for investment purposes. Any such transactions may be effected at any
time and from time to time.
8
As a result of these activities, and subject to the
limitations set forth in the Stockholders Agreement, one or more of the
Reporting Persons may suggest or take a position with respect to potential
changes in the operations, management, or capital structure of such companies as
a means of enhancing shareholder value. Such suggestions or positions may relate
to one or more of the transactions described in Item 4(a) through (j) of
Schedule 13D under Rule 13d-1(a), including, without limitation, such matters as
disposing of one or more businesses; selling the Company or acquiring another
company or business; changing operating or marketing strategies; adopting, not
adopting, modifying, or eliminating certain types of anti-takeover measures;
restructuring the Company's capitalization; reviewing dividend and compensation
policies; entering into agreements with third parties relating to acquisitions
of securities issued or to be issued by the Company; entering into agreements
with the management of the Company relating to acquisitions of shares of the
Company by members of management, issuance of options to management, or their
employment by the Company.
To the knowledge of each Reporting Person, each of the persons
listed on Schedule A hereto may make the same evaluation and reserve the same
rights.
Except as described in Items 3 and 6 of this Schedule 13D
which are incorporated herein by reference, the Reporting Persons have no
present plans or proposals that relate to or would result in any of the actions
described in Item 4(a) through (j) of Schedule 13D under Rule 13d-1(a).
ITEM 5. INTEREST IN SECURITIES OF THE COMPANY.
(a) (i) By virtue of its Original Investment and the
transactions consummated in connection with the Merger, EXOR is the direct
beneficial owner of 34,222,500 shares of the Company Common Stock representing
approximately 17.2% of the Company Common Stock, based on the number of shares
outstanding as of the close of the business day on August 8, 2003.
Because of their deemed control of EXOR, each of the other
Reporting Persons may be deemed to beneficially own all of the Company Common
Stock owned of record by EXOR.
(ii) By virtue of the Stockholders Agreement, the
CDR Fund V, the Coors Family Stockholders and EXOR may constitute a "group"
within the meaning of Rule 13d-5(b) under the Exchange Act. As members of the
group, the CDR Fund V, the Coors Family Stockholders and EXOR may be deemed to
beneficially own the Company Common Stock beneficially owned by the members of
the group as a whole.
If deemed a group, the Reporting Persons together
with the CDR Fund V and the Coors Family Stockholders may be deemed to
beneficially own, in the aggregate, 132,454,905 shares of Company Common Stock,
representing approximately 65.9% of the Company Common Stock, based on the
number of shares outstanding as of the close of business on August 8, 2003 and
assuming the exercise of all options held by the Coors Family Stockholders. Each
of the Reporting Persons expressly disclaims
9
beneficial ownership of those shares of Company Common Stock held by any other
member of the group.
(iii) Neither the filing of this Schedule 13D nor
any of its contents shall be construed as an admission that any of the Reporting
Persons is, for the purpose of Section 13(d) of the Exchange Act, the beneficial
owner of Company Common Stock other than those which they acquired pursuant to
the Original Investment and the transactions consummated in connection with the
Merger.
(iv) Except as described in Sections (a)(i) -
(iii), no other person is a beneficial owner of the Company Common Stock in
which EXOR has direct beneficial ownership.
(b) The responses to Items 7-10 of pages 2-4 of this
statement are incorporated herein by reference.
(c) The responses to Items 3, 4 and 6 of this Schedule
13D are incorporated herein by reference.
(d) To the knowledge of the Reporting Persons, no other
person has the right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, the Company Common Stock that may be
deemed to be beneficially owned by the Reporting Persons.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE COMPANY.
The responses to Items 3 and 4 of this Schedule 13D and the
Exhibits to this Schedule 13D are incorporated herein by reference. The
following is a summary of the Stockholders Agreement and the Registration Rights
Agreement. The summary is qualified in its entirety by the specific language of
the Stockholders Agreement and the Registration Rights Agreement, respectively.
STOCKHOLDERS AGREEMENT
BOARD OF DIRECTORS. The Stockholders Agreement provides that
the Board will consist of nine members, classified into three classes. Each of
the three classes will consist initially of three directors, the initial terms
of which will expire, respectively, at the first, second and third annual
meetings of stockholders following the completion of the Merger.
Immediately after the Effective Time, the Board will consist
of Jeffrey H. Coors (who will be Executive Chairman), Harold R. Logan, Jr. and
John D. Beckett (who currently are GPIC directors), Stephen M. Humphrey, Kevin
J. Conway, John R. Miller, Martin D. Walker and G. Andrea Botta (who currently
are Riverwood directors) and an additional designee to be selected by the CDR
Fund V.
10
The stockholders party to the Stockholders Agreement have
further expressed their intention that the board of directors of Graphic
Packaging International, Inc., the principal operating entity of the Company,
will have the same composition after the completion of the Merger as the Board.
DESIGNATION RIGHTS. The Stockholders Agreement provides that
the Coors family representative, the CDR Fund V and EXOR will each have the
right, subject to requirements related to stock ownership (as described below),
to designate a person for nomination for election to the Board. Each such
director will be designated to that class of directors whose initial term
expires at the third annual meeting of stockholders following the completion of
the Merger.
The Coors family representative is entitled to designate one
person for nomination for election to the Board for so long as the Coors Family
Stockholders, in the aggregate, own at least 5% of the fully diluted shares of
the Company Common Stock. The CDR Fund V will be entitled to designate one
person for nomination for election to the Board for so long as (1) it owns at
least 5% of the fully diluted shares of the Company Common Stock or (2) it owns
less than 5% of such shares and the Other Riverwood Stockholders, the CDR Fund V
and EXOR continue to own, in the aggregate, at least 30% of such shares. EXOR
will be entitled to designate one person for nomination for election to the
Board for so long as it owns at least 5% of the fully diluted shares of the
Company Common Stock.
Pursuant to the Stockholders Agreement, at each meeting of the
stockholders of the Company at which directors of the Company are to be elected,
the Company will recommend that the stockholders elect to the Board the
designees designated by the Coors family representative, the CDR Fund V and
EXOR. In addition, for so long as Stephen M. Humphrey serves as the Chief
Executive Officer of the Company, the Stockholders Agreement provides that he
will be nominated for election to the Board at any meeting of the stockholders
at which directors of his class are to be elected.
INDEPENDENT DIRECTORS. The Stockholders Agreement further
provides that each of the directors, other than Mr. Humphrey and the directors
nominated by the Coors family representative, the CDR Fund V and EXOR, will be a
Company independent director (as defined below) designated for nomination by the
nominating and corporate governance committee of the Board. In the event that
the Coors family representative, the CDR Fund V or EXOR loses the right to
designate a person to the Board, such designee will resign immediately upon
receiving notice from the nominating and corporate governance committee that it
has identified a replacement director, and will resign in any event no later
than 120 days after the designating person or entity loses the right to
designate such designee to the Board. At such time as Mr. Humphrey is no longer
the Chief Executive Officer of the Company, he will similarly resign upon
receipt of notice from the nominating and corporate governance committee and, in
any event, no later than 120 days after ceasing to serve as Chief Executive
Officer.
A "Company independent director" is a director who (1) is not
an officer or employee of the Company or any of its affiliates, (2) is not an
officer or employee of
11
any stockholder party to the Stockholders Agreement or, if such stockholder is a
trust, a direct or indirect beneficiary of such trust and (3) meets the
standards of independence under applicable law and the requirements applicable
to companies listed on the New York Stock Exchange.
AGREEMENT TO VOTE FOR DIRECTORS; VACANCIES. Each party to the
Stockholders Agreement agrees to vote all of the shares owned by such
stockholder in favor of Mr. Humphrey (for so long as he is the Chief Executive
Officer of the Company) and each of the parties' designees to the Board, and to
take all other steps within such stockholder's power to ensure that the
composition of the Board is as contemplated by the Stockholders Agreement.
As long as the Coors family representative, the CDR Fund V or
EXOR, as the case may be, has the right to designate a person for nomination for
election to the Board, at any time at which the seat occupied by such party's
designee becomes vacant as a result of death, disability, retirement,
resignation, removal or otherwise, such party will be entitled to designate for
appointment by the remaining directors an individual to fill such vacancy and to
serve as a director. Riverwood and each of the stockholder parties to the
Stockholders Agreement has agreed to take such actions as will result in the
appointment to the Board as soon as practicable of any individual so designated
by the Coors family representative, the CDR Fund V or EXOR.
At any time at which a vacancy is created on the Board as a
result of the death, disability, retirement, resignation, removal or otherwise
of one of the independent directors before the expiration of his or her term as
director, the nominating and corporate governance committee will notify the
Board of a replacement who is a Company independent director. Each of the
Company and the stockholders party to the Stockholders Agreement have agreed to
take such actions as will result in the appointment of such replacement to the
Board as soon as practicable.
Each stockholder party to the Stockholders Agreement has
agreed (i) not to vote, or give any proxy or consent, in favor of the removal as
a director of the Company of any individual so designated by the Coors family
representative, the CDR Fund V or EXOR without the prior written consent of the
other parties to the Stockholders Agreement, and (ii) not to give any proxy
entitling the holder of such proxy to vote on, or give any proxy or consent with
respect to, the election of directors unless the holder of such proxy shall have
agreed to comply with the stockholder obligations under the Stockholders
Agreement.
If in connection with the election of any designee of the
Coors family representative, the CDR Fund V or EXOR, any party to the
Stockholders Agreement indicates that it will not, or fails or refuses to, vote
as required by the Stockholders Agreement, or votes or gives any proxy or
consent in contravention of the Stockholders Agreement, such party to the
Stockholders Agreement is thereby deemed to constitute and appoint the party to
the Stockholders Agreement whose interests are detrimentally affected by the
failure or refusal, as such party's irrevocable proxy and attorney-in-fact to
vote any and all of the shares held or controlled by such party in accordance
with the
12
Stockholders Agreement. This proxy will revoke any other proxy previously given
by the defaulting party in contravention of the Stockholders Agreement.
ACTIONS OF THE BOARD; AFFILIATE AGREEMENTS. The Stockholders
Agreement provides that actions of the Board will require the affirmative vote
of at least a majority of the directors present in person or by telephone at a
duly convened meeting at which a quorum is present, or the unanimous written
consent of the Board, except that a Board decision regarding the merger,
consolidation or sale of substantially all the assets of the Company will
require the affirmative vote of a majority of the directors then in office. In
addition, a decision by the Company to enter into, modify or terminate any
agreement with an affiliate of the Coors Family Stockholders, the CDR Fund V or
EXOR will require the affirmative vote of a majority of the directors not
nominated by any stockholder which, directly or indirectly through an affiliate,
has an interest in that agreement.
BOARD COMMITTEES. The Stockholders Agreement provides for the
Board to have an audit committee, a compensation and benefits committee and a
nominating and corporate governance committee as follows:
o The audit committee will have three members, consisting of the
directors designated by the CDR Fund V and the Coors family
representative and one Company independent director, or such other
members as the CDR Fund V and the Coors family representative may
mutually agree. The audit committee will have the authority, at
its discretion, to invite the director designated by EXOR to
attend meetings of the audit committee as a non-voting observer.
o The compensation and benefits committee will have three members,
consisting of the directors designated by the CDR Fund V and the
Coors family representative and one Company independent director,
or such other members as the CDR Fund V and the Coors family
representative may mutually agree. No employee of the Company or
its subsidiaries will serve on this committee. The director
designated by EXOR will have the right to attend meetings of the
compensation and benefits committee as a non-voting observer and
to receive copies of all materials provided to the committee.
o The nominating and corporate governance committee will have five
members, consisting of the directors designated by the CDR Fund V,
the Coors family representative and EXOR and two Company
independent directors, or such other members as the CDR Fund V,
the Coors family representative and EXOR shall mutually agree. No
employee of the Company or its subsidiaries (other than Jeffrey H.
Coors) will serve on this committee.
Each of the Company and the stockholders party to the
Stockholders Agreement have agreed to take all steps within their power to
ensure that the composition of the Board's committees are as provided in the
Stockholders Agreement. The rights described above of each of the CDR Fund V,
the Coors family representative and EXOR to have its director designee sit as a
member of Board committees will cease at such time as such stockholder holds
less than 5% of the fully diluted shares of the Company
13
Common Stock, except that the CDR Fund V will continue to have such right so
long as the Other Riverwood Stockholders, the CDR Fund V and EXOR continue to
own, in the aggregate, at least 30% of the fully diluted shares of the Company
Common Stock. The Board will fill any committee seats that become vacant in the
manner provided in the preceding sentence with Company independent directors.
The Board is prohibited from forming an executive committee.
OBSERVATION AND INFORMATION RIGHTS; DIRECTORS EMERITUS. The
Stockholders Agreement provides that The 1818 Fund II, L.P., a stockholder of
Riverwood since before the completion of the Merger, will have the right to
designate Laurence C. Tucker to attend meetings of the Board and to receive
copies of all written materials provided to the Board. This right will terminate
at such time as The 1818 Fund II, L.P. transfers 50% or more of the Company
Common Stock held by such entity at the completion of the Merger. Mr. Tucker
will not have any right to vote on any matter presented to the Board.
Under the Stockholders Agreement, the Coors family
representative will have the right to designate William K. Coors as an emeritus
director of the Company, and the CDR Fund V will have the right to designate B.
Charles Ames as an emeritus director of the Company. In such capacities, Mr.
William Coors and Mr. Ames will have the right to attend meetings of the Board
and to receive copies of all written materials provided to the Board. Mr.
William Coors' position as emeritus director will terminate at such time as the
Coors Family Stockholders, in the aggregate, hold less than 5% of the fully
diluted shares of the Company Common Stock. Mr. Ames' position as emeritus
director will terminate at such time as the CDR Fund V holds less than 5% of the
fully diluted shares of the Company Common Stock and the Other Riverwood
Stockholders, the CDR Fund V and EXOR hold, in the aggregate, less than 30% of
the fully diluted shares of the Company Common Stock. Mr. William Coors and Mr.
Ames will not have any right to vote on any matter presented to the Board.
Mr. Tucker, Mr. William Coors, Mr. Ames and each of the
recipients of information rights will be obliged to the maintain the
confidentiality of information received in connection with the exercise of their
respective rights. As Mr. Tucker, Mr. William Coors and Mr. Ames will not be
serving as directors of the Company, the Stockholders Agreement provides that
they will not have duties, obligations or liability to the Company or its
stockholders.
TRANSFER RESTRICTIONS. The stockholders party to the
Stockholders Agreement have agreed not to transfer any shares of the Company
Common Stock during the restricted period (as defined below), except for (1)
transfers to certain affiliated permitted transferees that agree to be bound by
the Stockholders Agreement, and (2) a sale to the public pursuant to an
effective registration statement filed under the Securities Act of 1933, as
amended (the "Securities Act"). In the event of a transfer by a stockholder of
all (but not less than all) of such stockholder's Company Common Stock to a
permitted transferee, such permitted transferee will have all of the rights of
the transferring stockholder under the Stockholders Agreement. After the
expiration of the restricted period, each stockholder party to the Stockholders
Agreement may also transfer
14
Company Common Stock pursuant to Rule 144 or other applicable exemptions from
registration under the Securities Act, subject to any holdback obligations that
such stockholder may have under the Registration Rights Agreement.
The "restricted period" begins at the effective time of the
Merger and continues until the earlier of (1) such time as 50% or more of the
issued and outstanding shares of the Company Common Stock have been publicly
distributed or sold (including shares issued upon the exercise of employee stock
options), or are being actively tracked on a national securities exchange or
interdealer quotation system, and (2) 18 months after the Effective Time.
The share certificates owned by each of the stockholder
parties to the Stockholders Agreement will bear customary legends with respect
to transfer restrictions.
FEE PAYABLE TO CLAYTON DUBILIER & RICE, INC. ("CD&R"). On
August 8, 2003, under the terms of the Stockholders Agreement, the Company paid
to CD&R a transaction fee of $10 million related to obtaining financing, meeting
with rating agencies and other expenses related to the Merger and the
transactions consummated in connection therewith.
TERMINATION. The Stockholders Agreement will remain in effect
until it is terminated by unanimous agreement of the Company and the stockholder
parties thereto or until such time as no more than one of (i) the CDR Fund V,
(ii) EXOR, (iii) the CDR Fund V and the Other Riverwood Stockholders in the
aggregate, or (iv) the Coors Family Stockholders, holds 5% or more of the
outstanding Company Common Stock on a fully diluted basis. In addition, the
Stockholders Agreement will terminate as to any stockholder party thereto at
such time as such stockholder no longer owns any shares of Company Common Stock.
REGISTRATION RIGHTS AGREEMENT
Riverwood, CDR Fund V, EXOR, the Other Riverwood Stockholders
and the Coors Family Stockholders entered into the Registration Rights
Agreement, under which the parties agreed to amend and restate Riverwood's
previous Registration and Participation Agreement, dated as of March 27, 1996
(the "Original Registration Rights Agreement"). The Registration Rights
Agreement became effective upon the completion of the Merger. The following is a
summary of the Registration Rights Agreement.
The Registration Rights Agreement provides that, after the
expiration of 90 days from the effective time of the Merger, holders of 15% or
more of the outstanding shares of the Company Common Stock may request that the
Company effect the registration under the Securities Act of all or part of such
holder's registrable securities (as defined below). Upon receipt of such a
request, the Company is required to promptly give written notice of such
requested registration to all holders of registrable securities and, thereafter,
to use its reasonable best efforts to effect the registration under the
Securities Act of all registrable securities which it has been requested to
register pursuant to the terms of the Registration Rights Agreement. After the
expiration of 180 days after the closing of an initial secondary offering,
holders of 5% or more of the outstanding
15
shares of the Company Common Stock may again request that the Company effect the
registration under the Securities Act of all or part of such holder's
registrable securities. In all cases, the Company's obligations to register the
registrable securities are subject to the minimum and maximum offering size
limitations set forth below.
With respect to the first two requests to effect registration
of registrable securities, the Company will not be required to effect such
registration if such requests relate to less than 15% of the outstanding shares
of Company Common Stock or, without the approval of the Board, more than 25% of
the outstanding shares of Company Common Stock. Any request for registration of
registrable securities after the first two requests will be subject to a minimum
offering size of 5% of the outstanding shares of Company Common Stock.
The Registration Rights Agreement provides that "registrable
securities" means:
o all shares of Company Common Stock owned by the CDR Fund V, EXOR
or the Other Riverwood Stockholders;
o all shares of Company Common Stock issued to the Coors family
stockholders in connection with the Merger;
o all securities that were registrable securities under the Original
Registration Rights Agreement;
o all shares of Company Common Stock issued after March 25, 2003 to
members of management or directors of the Company for so long as
any such shares constitute restricted securities; and
o any securities issued or issuable with respect to any Company
Common Stock referred to above as a result of a conversion,
exchange, stock dividend or distribution, stock split or reverse
stock split, combination, recapitalization, merger, consolidation
or other reorganization thereof.
The Registration Rights Agreement provides that such
securities cease to be "registrable securities" when:
o a registration statement (other than a registration on Form S-4 or
S-8 pursuant to which such securities were issued by the Company)
with respect to the sale of such securities has become effective
under the Securities Act and such securities have been disposed of
in accordance with such registration statement;
o such securities have been distributed to the public in reliance
upon Rule 144 under the Securities Act;
o such securities have been otherwise transferred in compliance with
the Securities Act, new certificates for such securities not
bearing a legend restricting further transfer have been delivered
by the Company and
16
subsequent disposition of such securities does not require
registration or qualification of such securities under the
Securities Act or any similar state law then in force; or
o such securities have ceased to be outstanding.
If the stockholders party to the Registration Rights Agreement
request registration of any of their shares, the Company is required to prepare
and file a registration statement with the SEC as soon as possible, and no later
than 60 days after receipt of the request.
The Company will pay all expenses in connection with the first
four successfully effected registrations requested.
The stockholders party to the Registration Rights Agreement
have the right to request that any offering requested by them under the
Registration Rights Agreement be an underwritten offering. The Company will have
the right to select one or more underwriters to administer the requested
offering, but the selection of underwriters will be subject to approval by the
holders of a majority of the shares to be included in the offering.
The Registration Rights Agreement also provides that, with
certain exceptions, the parties thereto will have certain incidental
registration rights in the event that the Company at any time proposes to
register any of its equity securities and the registration form to be used may
be used for the registration of securities otherwise registrable under the
Registration Rights Agreement.
If the holders of a majority of the registrable securities for
which registration is being requested determine that the number of securities to
be sold in any offering should be limited due to market conditions or otherwise,
or in the event that the number of shares of registrable securities for which
registration is being requested exceeds the maximum number of shares permitted
to be included in such registration, holders of registrable securities proposing
to sell their securities in such registration shall share pro rata in the number
of securities being offered and registered for their account, such sharing to be
based on the number of registrable securities as to which registration was
requested by such holders, except that securities being offered by the Company
will have first priority in any such registration.
For purposes of determining the pro rata share of EXOR
(together with its affiliates) in connection with the first registration request
made by the holders of at least 15% (by number of shares) of the outstanding
shares of Company Common Stock, the parties agree that if the CDR Fund V (or any
of its affiliates) shall not have requested any of the registrable securities
held by them to be registered then (A) the CDR Fund V (together with its
affiliates) shall be deemed to have requested registration of all of the
registrable securities held by the CDR Fund V (together with its affiliates) and
(B) the number of registrable securities equal to the number of registrable
securities that the CDR Fund V (together with its affiliates) could have
registered will become available exclusively to EXOR (together with its
affiliates) for it to register its registrable securities
17
as part of such registration in addition to the registrable securities that EXOR
could otherwise register.
In addition to the provisions set forth above, the
Registration Rights Agreement contains other terms and conditions including
those customary to agreements of this kind.
The Registration Rights Agreement will terminate on the
earliest of its termination by unanimous consent of the parties, the date on
which no registrable securities are outstanding, or the dissolution, liquidation
or winding up of the Company.
JOINT FILING AGREEMENT
In addition, the Reporting Persons have entered into a Joint
Filing Agreement, a copy of which is filed as Exhibit 7 hereto and incorporated
by reference herein, regarding the filing of this Schedule 13D and future
amendments thereto.
Except for the agreements described in the response to this
Item 6, to the knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
persons enumerated in Item 2, and any other person, with respect to any
securities of the Company, including but not limited to, transfer or voting of
any of the securities, finder's fees, joint ventures, loan or option
arrangements, put or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 Agreement and Plan of Merger, dated as of March 25, 2003,
among Riverwood Holding, Inc., Riverwood Acquisition Sub LLC
and Graphic Packaging International Corporation (incorporated
herein by reference to Exhibit 2.1 to Riverwood Holding,
Inc.'s Registration Statement on Form S-4, Registration No.
333-104928, filed May 2, 2003)
Exhibit 2 Amendment No. 1 to Agreement and Plan of Merger, dated as of
July 11, 2003, among Riverwood Holding, Inc., Riverwood
Acquisition Sub LLC and Graphic Packaging International
Corporation (incorporated herein by reference to Exhibit 2.2
to Riverwood Holding, Inc.'s Amendment No. 3 to the
Registration Statement on Form S-4, Registration No.
333-104928, filed July 17, 2003)
Exhibit 3 Stockholders Agreement, dated as of March 25, 2003, by and
among Riverwood Holding, Inc., the Family Stockholders named
therein, Clayton Dubilier & Rice Fund V Limited Partnership,
EXOR Group S.A. (incorporated herein by reference to Exhibit
10.2 to Riverwood Holding, Inc.'s Registration Statement on
Form S-4, Registration No. 333-104928, filed May 2, 2003)
18
Exhibit 4 Amendment No. 1 to Stockholders Agreement, dated as of April
29, 2003, by and among Riverwood Holding, Inc., the Family
Stockholders named therein, Clayton Dubilier & Rice Fund V
Limited Partnership, EXOR Group S.A. (incorporated herein by
reference to Exhibit 10.2 to Riverwood Holding, Inc.'s
Amendment No. 1 to the Registration Statement on Form S-4,
Registration No. 333-104928, filed June 13, 2003)
Exhibit 5 Amendment No. 2 to Stockholders Agreement, dated as of June
12, 2003, by and among Riverwood Holding, Inc., the Family
Stockholders named therein, Clayton Dubilier & Rice Fund V
Limited Partnership, EXOR Group S.A. (incorporated herein by
reference to Exhibit 10.2 to Riverwood Holding, Inc.'s
Amendment No. 1 to the Registration Statement on Form S-4,
Registration No. 333-104928, filed June 13, 2003)
Exhibit 6 Amended and Restated Registration Rights Agreement, dated as
of March 25, 2003, by and among Riverwood Holding, Inc., the
Family Stockholders named therein, Clayton Dubilier & Rice
Fund V Limited Partnership, EXOR Group S.A., and the Other
Riverwood Stockholders named therein (incorporated herein by
reference to Exhibit 10.1 to Riverwood Holding, Inc.'s
Registration Statement on Form S-4, Registration No.
333-104928, filed May 2, 2003)
Exhibit 7 Joint Filing Agreement, dated as of August 18, 2003, by and
among the Reporting Persons*
* Filed herewith.
19
SIGNATURE
---------
After reasonable inquiry and to my best knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: August 18, 2003
EXOR GROUP S.A.
By: *
---------------------------------------
Peter J. Rothenberg
Attorney-in-Fact
Istituto Finanziario Industriale S.p.A.
By: *
---------------------------------------
Peter J. Rothenberg
Attorney-in-Fact
Giovanni Agnelli e C. S.a.p.az.
By: *
---------------------------------------
Peter J. Rothenberg
Attorney-in-Fact
/s/ Peter J. Rothenberg
--------------------------------------------
* Peter J. Rothenberg
Attorney-in-Fact
SCHEDULE A
----------
POSITION HELD WITH
GA, IFI AND/OR PRESENT PRINCIPAL
NAME ADDRESS EXOR OCCUPATION OR EMPLOYMENT CITIZENSHIP
---- ------- ---- ------------------------ -----------
Umberto Agnelli Corso Matteotti 26, Chairman and General Industrialist; Chairman of IFI, Italy
10121 Turin, Italy Partner of GA; GA and Fiat S.p.A. ("Fiat");
Chairman and Member of the Oversight Board
Director of IFI of Worms & Cie S.A.; Director
of Groupe Danone S.A.
Tiberto Ruy 22-24 Boulevard Royal Deputy Chairman, Deputy Chairman and Managing Italy
Brandolini d'Adda L-2449 Luxembourg Managing Director Director of EXOR; Chief
and Director of EXOR Executive Officer and Director
of EXOR S.A.; Deputy Chairman
of the Oversight Board of Worms
& Cie S.A.; Member of the
Oversight Board of Club
Mediterranee S.A.; Director of
IFIL S.p.A. ("IFIL"), Espirito
Santo Financial Group S.A. and
Le Continent I.A.R.D.
Annibale Corso Matteotti 26, Director of IFI Director of IFI, Reale Mutua di Italy
Avogadro 10121 Turin, Italy Assicurazione and Banca Reale
di Collobiano
Gabriele Galateri Corso Matteotti 26, Director of IFI Chairman of Mediobanca S.p.A.; Italy
di Genola 10121 Turin, Italy Deputy Chairman of
Assicurazioni Generali S.p.A.;
Director of IFI, Cassa di
Risparmio di Savigliano S.p.A.
and Banca Esperia
John Philip Corso Matteotti 26, General Partner of General Partner of GA; Director Italy
Elkann 10121 Turin, Italy GA; Director of IFI of EXOR, IFI and Fiat
and EXOR
Gianluigi Gabetti Corso Matteotti 26, Deputy Chairman and Chairman of EXOR and Fiat Italy
10121 Turin, Italy General Partner of U.S.A., Inc.; Chairman and
GA; Deputy Chairman Managing Director of IFIL;
and Director of IFI; Deputy Chairman of IFI and GA;
Chairman and Member Director of EXOR of the
Director of EXOR S.A.; Oversight Board of Worms
& Cie S.A. and Club
Mediterranee S.A.
2
POSITION HELD WITH
GA, IFI AND/OR PRESENT PRINCIPAL
NAME ADDRESS EXOR OCCUPATION OR EMPLOYMENT CITIZENSHIP
---- ------- ---- ------------------------ -----------
Jacques Loesch 4, Rue Carlo Hemmer Director of EXOR Senior of Counsel, Linklaters Luxembourg
L-1734 Luxembourg Loesch
Pierre Martinet 19, Avenue Montaigne Secretary of EXOR Managing Director of EXOR S.A. France
75008 Paris, France
Virgilio Marrone Corso Matteotti 26, General Manager of General Manager of IFI; Italy
10121 Turin, Italy IFI; Director of EXOR Director of EXOR, EXOR S.A. and
SANPAOLO IMI S.p.A
Alessandro Strada Superga, 74 General Partner of GA General Partner of GA Italy
Giovanni Nasi 10132 Turin, Italy
Andrea Nasi Corso Matteotti 26, Director of IFI Industrialist; Director of IFI Italy
10121 Turin, Italy
Lupo Rattazzi Corso Matteotti 26, Director of IFI Chairman of Strategic Investors Italy
10121 Turin, Italy Group; Director of IFI
Franzo Grande Studio Grande Stevens Director and Lawyer; Chairman of P. Ferrero Italy
Stevens Via de Carmine, 2 Secretary of IFI; & C. S.p.A.; Deputy Chairman of
Turin, Italy Director of EXOR TORO Assicurazioni S.p.A.;
Director of IFI, IFIL, EXOR,
Fiat, IPI S.p.A., La Rinascente
S.p.A., Pininfarina S.p.A.,
Banca del Piemonte S.p.A.,
Banca Sella, Davide Campari
S.p.A. and HDP S.p.A.; Member
of the Advisory Committee of
Reale Mutua di Assicurazione
Pio Corso Matteotti 26, Director of IFI Director of IFI, IFIL, Lloyd Italy
Teodorani-Fabbri 10121 Turin, Italy Adriatico Assicurazioni S.p.A.
and TREVI-Finanziaria
Industriale S.p.A.
SCHEDULE B
----------
FAMILY STOCKHOLDERS
-------------------
1. ADOLPH COORS, JR. TRUST dated September 12, 1969 by its acting
Trustees: William K. Coors, Jeffrey H. Coors, Peter H. Coors, J.
Bradford Coors, and Melissa E. Coors
2. AUGUSTA COORS COLLBRAN TRUST dated July 5, 1946 by its acting Trustees:
William K. Coors, Joseph Coors, Jr., Jeffrey H. Coors, Peter H. Coors,
and John K. Coors
3. BERTHA COORS MUNROE TRUST dated July 5, 1946 by its acting Trustees:
William K. Coors, Joseph Coors, Jr., Jeffrey H. Coors, Peter H. Coors,
and John K. Coors
4. GROVER C. COORS TRUST dated August 7, 1952 by its acting Trustees:
William K. Coors, Joseph Coors, Jr., Jeffrey H. Coors, Peter H. Coors,
and John K. Coors
5. HERMAN F. COORS TRUST dated July 5, 1946 by its acting Trustees:
William K. Coors, Joseph Coors, Jr., Jeffrey H. Coors, Peter H. Coors,
John K. Coors, and Darden K. Coors
6. JANET H. COORS IRREVOCABLE TRUST FBO FRANCES M. BAKER dated July 27,
1976, by its acting Trustees: William K. Coors, Jeffrey H. Coors, and
Peter H. Coors
7. JANET H. COORS IRREVOCABLE TRUST FBO FRANK E. FERRIN dated July 27,
1976, by its acting Trustees: William K. Coors, Jeffrey H. Coors, and
Peter H. Coors
8. JANET H. COORS IRREVOCABLE TRUST FBO JOSEPH J. FERRIN dated July 27,
1976, by its acting Trustees: William K. Coors, Jeffrey H. Coors, and
Peter H. Coors
9. JOSEPH COORS TRUST dated December 14, 1988, by its acting Trustees:
William K. Coors, Joseph Coors, Jr., Jeffrey H. Coors, and Peter H.
Coors
10. LOUISE COORS PORTER TRUST dated July 5, 1946 by its acting Trustees:
William K. Coors, Joseph Coors, Jr., Jeffrey H. Coors, Peter H. Coors,
and John K. Coors
11. MAY KISTLER COORS TRUST dated September 24, 1965 by its acting
Trustees: William K. Coors, Joseph Coors, Jr., Jeffrey H. Coors, Peter
H. Coors, and John K. Coors
12. DARDEN K. COORS
13. JEFFREY H. COORS
14. JOHN K. COORS
15. JOSEPH COORS, JR.
2
16. PETER H. COORS
17. WILLIAM K. COORS
18. ADOLPH COORS FOUNDATION