EX-4.1 AMENDMENT TO RIGHTS AGREEMENT



 





Exhibit 4.1




Execution Version




AMENDMENT TO RIGHTS AGREEMENT




     THIS AMENDMENT (the “Rights Amendment”) is entered into as of the 9th day of July
2007, by and between Graphic Packaging Corporation, a Delaware corporation (f/k/a Riverwood
Holding, Inc.) (the “Corporation”), and Wells Fargo Bank, National Association (f/k/a Wells
Fargo Bank Minnesota, National Association), as Rights Agent (the “Rights Agent”), in order
to amend the terms of that certain Rights Agreement dated as of August 7, 2003, by and between the
Corporation and the Rights Agent (the “Rights Agreement”).



     WHEREAS, the Corporation, Bluegrass Container Holdings, LLC, a Delaware limited liability
Company (“BCH”), TPG Bluegrass IV, LP, a Delaware limited partnership (“TPG IV”),
TPG Bluegrass IV-AIV 2, LP, a Delaware limited partnership (“TPG IV-AIV”), TPG Bluegrass V,
LP, a Delaware limited partnership (“TPG V”), TPG Bluegrass V-AIV 2, LP, a Delaware limited
partnership (“TPG V-AIV”), Field Holdings, Inc., a Delaware corporation (“Field
Holdings”), TPG FOF V-A, L.P., a Delaware limited partnership (“FOF V-A”), TPG FOF V-B,
L.P., a Delaware limited partnership (“FOF V-B”), BCH Management LLC, a Delaware limited
liability company (together with TPG IV, TPG IV-AIV, TPG V, TPG V-AIV, Field Holdings FOF V-A, FOF
V-B and each owner of BCH equity interests joining the Transaction Agreement (as hereinafter
defined) as a Seller pursuant to Section 5.13 of the Transaction Agreement, the “Sellers”),
New Giant Corporation, a Delaware corporation (“Newco”), and Giant Merger Sub, Inc., a
Delaware corporation (“Merger Sub”) propose to enter into a Transaction Agreement and
Agreement and Plan of Merger, dated as of July 9, 2007 (the “Transaction Agreement”)
pursuant to which Merger Sub will be merged with and into the Corporation (the “Merger”)
and each Seller will contribute to Newco the BCH equity interests owned by each such Seller in
exchange for the issuance by Newco to each such Seller of common stock of Newco (the
“Exchange”);



     WHEREAS, BCH, the Corporation and certain stockholders of the Corporation, in connection with
the Transaction Agreement, are entering into a Voting Agreement, dated as of July 9, 2007 (the
“Voting Agreement”);



     WHEREAS, the Board of Directors of the Corporation has determined, in connection with the
proposed execution of the Transaction Agreement and the Voting Agreement, that it is desirable to
amend the Rights Agreement to exempt the Transaction Agreement, the Voting Agreement, and the
transactions contemplated thereby, including, without limitation, the Merger and the Exchange, from
the application of the Rights Agreement as set forth in this Rights Amendment;



     WHEREAS, as of the time immediately prior to the execution of this Rights Amendment, no Person
has become an Acquiring Person;



     WHEREAS, Section 27 of the Rights Agreement provides that prior to a Stock Acquisition Time,
the Corporation may, and the Rights Agent shall if the Corporation so directs, supplement or amend
any provision of the Rights Agreement in any respect whatsoever or desirable without the approval
of any other person or persons, subject to certain limitations provided therein;



     WHEREAS, Section 27 of the Rights Agreement provides that any supplement or amendment to the
Rights Agreement becomes effective immediately upon execution by the Corporation, whether or not
executed by the Rights Agent, so long as it does not amend the Rights Agreement in a manner adverse
to the Rights Agent; and



     WHEREAS, the Corporation desires to amend the Rights Agreement as set forth herein and hereby
directs the Rights Agent to execute this Rights Amendment.



 









 





     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:



     SECTION 1. AMENDMENTS TO THE RIGHTS AGREEMENT. The Rights Agreement is hereby amended as
follows:



          1.1. New Definitions. Section 1 of the Rights Agreement is hereby amended by
inserting the following subsections at the end of Section 1:





“(aaa) “Transaction Agreement” shall mean the Transaction Agreement and Agreement
and Plan of Merger dated as of July 9, 2007 (as it may be amended or supplemented
from time to time), by and among the Corporation, Bluegrass Container Holdings, LLC,
a Delaware limited liability Company, TPG Bluegrass IV, LP, a Delaware limited
partnership, TPG Bluegrass IV-AIV 2, LP, a Delaware limited partnership, TPG
Bluegrass V, LP, a Delaware limited partnership, TPG Bluegrass V-AIV 2, LP, a
Delaware limited partnership, Field Holdings, Inc., a Delaware corporation, TPG FOF
V-A, L.P., a Delaware limited partnership, TPG FOF V-B, L.P., a Delaware limited
partnership, BCH Management, LLC, a Delaware limited liability company, New Giant
Corporation, a Delaware corporation, and Giant Merger Sub, Inc., a Delaware
corporation.”




“(bbb) “Merger” shall have the meaning set forth in the Transaction Agreement.”




“(ccc) “Exchange” shall have the meaning set forth in the Transaction Agreement.”




“(ddd) “Exempted Transaction” shall have the meaning set forth in Section 1(a)(vi)
of this Agreement.”




“(eee) “BCH Parties” shall mean Bluegrass Container Holdings, LLC, a Delaware
limited liability Company, TPG Bluegrass IV, LP, a Delaware limited partnership, TPG
Bluegrass IV-AIV 2, LP, a Delaware limited partnership, TPG Bluegrass V, LP, a
Delaware limited partnership, TPG Bluegrass V-AIV 2, LP, a Delaware limited
partnership, Field Holdings, Inc., a Delaware corporation, TPG FOF V-A, L.P., a
Delaware limited partnership, TPG FOF V-B, L.P., a Delaware limited partnership, BCH
Management, LLC, a Delaware limited liability company and each owner of BCH equity
interests joining the Transaction Agreement as a Seller pursuant to Section 5.13 of
the Transaction Agreement.”




“(fff) “Newco” shall have the meaning set forth in the Transaction Agreement.”




“(ggg) “Merger Sub” shall have the meaning set forth in the Transaction Agreement.”




“(hhh) “Voting Agreement” shall mean the Voting Agreement dated as of July 9, 2007
(as it may be amended or supplemented from time to time), by and among Bluegrass
Container Holdings, LLC, the Corporation and certain stockholders of the
Corporation.”



          1.2. Amendment to Definition of “Acquiring Person”. Section 1(a) of the Rights
Agreement is hereby amended by inserting the following subclause (vi) at the end of Section 1(a):




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“(vi) Notwithstanding anything in this Agreement to the contrary, none of the BCH
Parties, their Subsidiaries, Affiliates or Associates, including Newco or Merger
Sub, is, nor shall any of them be deemed to be, an Acquiring Person solely by reason
of (A) the approval, amendment, adoption, execution, delivery or performance of the
Transaction Agreement, (B) the approval or consummation of the Merger or the
Exchange, (C) the approval or consummation of any other transaction contemplated by
the Transaction Agreement, (D) the approval, amendment, adoption, execution,
delivery or performance of the Voting Agreement or (E) the announcement of any of
the foregoing, it being the purpose of the Corporation in adopting this amendment to
the Agreement that neither the execution of the Transaction Agreement or Voting
Agreement by any of the parties nor the consummation of the transactions
contemplated thereby shall in any respect give rise to any provisions of the
Agreement becoming effective. Each event described in this subclause (vi) is
referred to herein as an “Exempted Transaction.”



          1.3. Amendment to Definition of “Beneficial Owner”. Section 1(f) of the Rights
Agreement shall be amended by inserting the following subclause (v) at the end of Section 1(f):





“(v) Notwithstanding anything in this Section 1(f) to the contrary, none of the BCH
Parties, their Subsidiaries, Affiliates or Associates, including Newco and Merger
Sub, shall be deemed a Beneficial Owner of, or to beneficially own, any securities
solely by virtue of or as a result of any Exempted Transaction.”



          1.4. Amendment to Definition of “Stock Acquisition Time”. Section 1(uu) of the Rights
Agreement shall be amended by inserting the following sentence at the end of Section 1(uu):





“Notwithstanding the foregoing or any provision to the contrary in this Agreement, a
Stock Acquisition Time shall not occur or be deemed to have occurred by virtue of or
as a result of any Exempted Transaction.”



          1.5. Amendment to Section 3(a). Section 3(a) of the Rights Agreement shall be amended
by inserting the following sentence at the end of Section 3(a):





“Notwithstanding the foregoing or any provision to the contrary in this Agreement, a
Distribution Date shall not occur or be deemed to have occurred in connection with,
by virtue of or as a result of any Exempted Transaction.”



          1.6. Amendment to Section 7(a). Clause (i) of Section 7(a) of the Rights Agreement
shall be amended and restated in its entirety to read as follows:





“(i) the earlier of (A) the Close of Business on August 8, 2013 or (B) immediately
prior to the Effective Time (as defined in the Transaction Agreement and of which
the Corporation will give the Rights Agent twenty four (24) hours notice), but only
if such Effective Time shall occur (the earlier of (A) and (B) being herein referred
to as the “Final Expiration Date”)”.



          1.7. Amendment to Section 8. Section 8 of the Rights Agreement shall be amended by
deleting the last two sentences of Section 8 and by inserting the following three sentences at the
end of Section 8:





“Subject to applicable law and regulation, the Rights Agent shall maintain (i) in a
retrievable database electronic records of all cancelled or destroyed stock
certificates



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which have been canceled or destroyed by the Rights Agent. The Rights Agent shall
maintain such electronic records or physical records for the time period required by
applicable law and regulation. Upon written request of the Corporation (and at the
expense of the Corporation), the Rights Agent shall provide to the Corporation or
its designee copies of such electronic records or physical records relating to
rights certificates cancelled or destroyed by the Rights Agent.”



          1.8. Amendment to Section 11(a)(ii). Section 11(a)(ii) of the Rights Agreement shall
be amended by inserting the following sentence at the end of Section 11(a)(ii):





“Notwithstanding the foregoing or any provision to the contrary in this Agreement, a
Section 11(a)(ii) Event shall not occur or be deemed to have occurred in connection
with, by virtue of or as a result of any Exempted Transaction.”



          1.9. Amendment to Section 13(a). Section 13(a) of the Rights Agreement shall be
amended by inserting the following sentence at the end of Section 13(a):





“Notwithstanding the foregoing or any provision to the contrary in this Agreement, a
Section 13 Event shall not occur or be deemed to have occurred, in connection with,
by virtue of or as a result of any Exempted Transaction.”



          1.10. Amendment to Section 13(b). Section 13(b) of the Rights Agreement shall be
amended by inserting the following sentence at the end of Section 13(b):





“Notwithstanding the foregoing or any provision to the contrary in this Agreement,
none of the BCH Parties, their Subsidiaries, Affiliates or Associates, including
Newco or Merger Sub, is, nor shall any of them be deemed to be, a Principal Party in
connection with, by virtue of or as a result of any Exempted Transaction.”



          1.11. Addition of Section 35. A new Section 35 is hereby added to the end of the
Agreement, which new Section 35 shall read in its entirety as follows:





“Section 35. Termination. On the Final Expiration Date, (a) this Agreement shall
be terminated and be without any further force or effect, (b) none of the parties to
this Agreement will have any rights, obligations or liabilities hereunder and (c)
the holders of the Rights shall not be entitled to any benefits, rights or other
interests under this Agreement, including, without limitation, the right to purchase
or otherwise acquire Preferred Stock or any other securities of the Corporation.”



     SECTION 2. DIRECTION TO RIGHTS AGENT. The Corporation hereby directs Wells Fargo Bank,
National Association, in its capacity as Rights Agent and in accordance with the terms of Section
27 of the Rights Agreement, to execute this Rights Amendment.



     SECTION 3. EFFECTIVENESS AND CONTINUED EFFECTIVENESS. Except as specifically supplemented and
amended, changed or modified in Section 1 above, the Rights Agreement shall be unaffected by this
Rights Amendment and remain in full force and effect in accordance with its terms; provided,
however, that if for any reason the Transaction Agreement is terminated or the transactions
contemplated thereby are abandoned, then this Rights Amendment shall be of no further force and
effect and the Rights Agreement shall remain exactly the same as it existed immediately prior to
execution of this Amendment. Subject to the foregoing provisions of this Section 3, this Rights



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Amendment shall become effective upon execution by the Corporation and shall be deemed to be in
full force and effect prior to the execution of the Transaction Agreement and Voting Agreement.



     SECTION 4. DEFINITIONS. All terms defined in the Rights Agreement that are used herein shall
have the meanings defined in the Rights Agreement, unless specifically defined otherwise herein.
The term “Agreement” as used in the Rights Agreement shall mean the Rights Agreement, as amended by
this Rights Amendment, or as it may from time to time be amended in the future by one or more other
written amendment or modification agreements entered into pursuant to the applicable provisions of
the Rights Agreement.



     SECTION 5. GOVERNING LAW. This Rights Amendment shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and performed entirely
within such State. The parties agree that all actions and proceedings arising out of this Rights
Amendment or any of the transactions contemplated hereby in connection with the rights and
obligations of the Rights Agent shall be brought in the courts of the State of Delaware or the
United States District Court for the District of Delaware (each, a “Delaware Court”) and
that, in connection with any such action or proceeding relating to the rights and obligations of
the Rights Agent, the parties submit to the jurisdiction of, and venue in, such Delaware Court.
Each of the parties hereto irrevocably waives any right to a trial by jury in any action,
proceeding or counterclaim arising out of this Rights Amendment or the transactions contemplated
hereby.



     SECTION 6. COUNTERPARTS. This Rights Amendment may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.



     SECTION 7. DESCRIPTIVE HEADINGS. Descriptive headings of the several Sections of this Rights
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.



     SECTION 8. COMPLIANCE WITH RIGHTS AGREEMENT. By execution of this Rights Amendment by the
undersigned officer of the Corporation, the Corporation hereby certifies that this Rights Amendment
complies with Section 27 of the Rights Agreement.



     SECTION 9. SEVERABILITY. If any term, provision, covenant or restriction of this Rights
Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Rights
Amendment, and of the Rights Agreement, shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.



     SECTION 10. WAIVER OF NOTICE. By executing this Rights Amendment, the Corporation and the
Rights Agent hereby waive any notice requirement under the Rights Agreement pertaining to the
matters addressed herein.



[SIGNATURES ON FOLLOWING PAGE]




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     IN WITNESS WHEREOF, the parties hereto have caused this Rights Amendment to be duly executed
as of the date first above written.



	 	 	 	 	 
	 	GRAPHIC PACKAGING CORPORATION,

Formerly known as Riverwood Holding, Inc.

 	 
	 	By:  	/s/ David W. Scheible
 	 
	 	 	Name:  	David W. Scheible 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as Rights Agent

 	 
	 	By:  	/s/  Barbara M. Novak
 	 
	 	 	Name:  	Barbara M. Novak 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Amendment to Rights Agreement]